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EXHIBIT 10.2 FIRST AMENDMENT TO THE AMENDED AND RESTATED SYNCHRONY FINANCIAL EXECUTIVE SEVERANCE PLAN WHEREAS, Synchrony Financial (the “Company”) maintains the Amended and Restated Synchrony Financial Executive Severance Plan (the “Plan”);     WHEREAS, pursuant to Section 7 of the Plan, the Plan may be amended by the Management Development and Compensation Committee of the Board of Directors of the Company (the “Committee”); and WHEREAS, the Committee desires to amend the Plan to increase the severance benefits made available under the Plan (the “Amendment”). NOW, THEREFORE, BE IT RESOLVED, that, effective as of the date hereof, the Plan hereby is amended as follows: 1. Section 1(q) (definition of “Severance Base Salary Amount”) of the Plan is hereby amended in its entirety to read as follows: “Severance Base Salary Amount” means, as determined by the Plan Administrator: (i) with respect to a Group One Participant (A) who is notified after October 1, 2020 and on or before the notification end date of December 31, 2020 that he or she will incur a Separation from Service by reason of a Qualifying Termination (as determined by the Plan Administrator), ten (10) months’ of such Participant’s annual base salary and (B) who is not described in clause (A) of this subsection, six (6) months’ of such Participant’s annual base salary; (ii) with respect to a Group Two Participant (A) who is notified after October 1, 2020 and on or before the notification end date of December 31, 2020 that he or she will incur a Separation from Service by reason of a Qualifying Termination (as determined by the Plan Administrator), sixteen (16) months’ of of this subsection, twelve (12) months’ of such Participant’s annual base salary; and (iii) with respect to a Group Three Participant, eighteen (18) months’ of such Participant’s annual base salary. 2. Section 1(r) (definition of “Severance Period”) of the Plan is hereby amended in its entirety to read as follows: “Severance Period” means the period commencing on a Participant’s Termination Date and ending, (as determined by the Plan Administrator), ten (10) months after the Termination Date and (B) who is not described in clause (A) of this subsection, six (6) months after the Termination Date; Termination (as determined by the Plan Administrator), sixteen (16) months after the Termination Date and (B) who is not described in clause (A) of this subsection, twelve (12) months after the Termination Date; and (iii) with respect to a Group Three Participant, eighteen (18) months after the Termination Date. IN WITNESS WHEREOF, the Committee has caused this instrument to be executed by its duly authorized agent as of [______ __], 2020.      SYNCHRONY FINANCIAL By:                          Name:                      Title:                         

Exhibit 10.1    Note Purchase Agreement*   This Note Purchase Agreement (this “Agreement”), dated as of November 22, 2019, is entered into by and between Inpixon, a Nevada corporation (“Company”), and St. George Investments LLC, a Utah limited liability company, its successors and/or assigns (“Investor”).   A. Company and Investor are executing and delivering this Agreement in reliance   B. Investor desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement, a Promissory Note, in the form attached hereto as Exhibit A (the “Note”), in the original principal amount of $952,500.00 (the “Initial Principal Amount”).   C. This Agreement, the Note, and all other certificates, documents, agreements, resolutions and instruments delivered to any party under or in connection with this Agreement, as the same may be amended from time to time, are collectively referred to herein as the “Transaction Documents”.       1.1. Purchase of Note. Company shall issue and sell to Investor and Investor shall purchase from Company the Note. In consideration thereof, Investor shall pay the Purchase Price (as defined below) to Company.   1.2. Form of Payment. On the Closing Date (as defined below), Investor shall pay the Purchase Price to Company via wire transfer of immediately available funds against delivery of the Note.   1.3. Closing Date. Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below, the date of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be November 22, 2019, or such other mutually agreed upon date. The closing of the   1.4. Collateral for the Note. The Note shall not be secured.   1.5. Original Issue Discount; Transaction Expense Amount. The Note carries an original issue discount of $187,500.00 (the “OID”). In addition, Company agrees to pay $15,000.00 to Investor to cover Investor’s legal fees, accounting costs, with the purchase and sale of the Note (the “Transaction Expense Amount”), all of which amount is included in the initial original principal amount of the Note. The “Purchase Price”, therefore, shall be $750,000.00, computed as follows: the Initial Principal Amount, less the OID, less the Transaction Expense Amount.     *Exhibit B been omitted pursuant to Item 601(a)(5) of Regulation S-K and will be provided on a supplemental basis to the Securities and Exchange Commission upon request. The exhibit contained the Secretary’s certificate with the board resolutions approving the transaction.          2. Investor’s Representations and Warranties. Investor represents and warrants to Company that as of the date hereof:   2.1. Organization; Authority. Investor is an entity duly organized, validly organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.   2.2. No Public Sale or Distribution. Investor is acquiring the Note for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or exempted under the 1933 Act; provided, however, by making the representations herein, Investor does not agree, or make any representation or warranty, to hold the Note for any minimum or other specific term and reserves the right to dispose of the Note at any time in accordance with or pursuant to a registration statement or an exemption from registration under the 1933 Act. Investor does not presently have any agreement or understanding, directly or indirectly, with any Person to distribute the Note in violation of applicable securities laws. For purposes of this Agreement, “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any governmental entity or any department or agency thereof.   2.3. Accredited Investor Status. Investor is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D promulgated under the 1933 Act.   2.4. Reliance on Exemptions. Investor understands that the Note is being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that Company is relying in part upon the truth and accuracy of, and Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of Investor set forth herein in order to determine the availability of such exemptions and the eligibility of Investor to acquire the Note.   2.5. Information. Investor and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of Company and materials relating to the offer and sale of the Note that have been requested by Investor. Investor and its advisors, if any, have been afforded the opportunity to ask questions of Company. Neither such inquiries nor any other due diligence investigations conducted by Investor or its advisors, if any, or its representatives shall modify, amend or affect Investor's right to rely on Company's representations and warranties contained herein. Investor understands that its investment in the Note involves a high degree of risk. Investor has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Note.   2.6. No Governmental Review. Investor understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Note or the fairness or suitability of the investment in the Note nor have such authorities passed upon or endorsed the merits of the offering of the Note.   2.7. Registration. Investor understands that the Note has not been and is not being registered under the 1933 Act or any state securities laws. Investor further understands and acknowledges that Company will not be obligated in the future to register the Note under the 1933 Act or the Securities Exchange Act of 1934, as amended (the “1934 Act”), or under any state securities laws and that Company has not made or is making any representation, warranty or covenant, express or implied, as to the availability of any exemption from registration under the 1933 Act or any applicable state securities laws for the resale, pledge or other transfer of the Note.    2.8. Validity; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of Investor and shall constitute the legal, valid and binding obligations of Investor enforceable against Investor in accordance with its terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.   2.9. No Conflicts. The execution, delivery and performance by Investor of this Agreement and the consummation by Investor of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of Investor, (ii) conflict with, or constitute a default (or an event which with any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which Investor is a party or (iii) result (including federal and state securities laws) applicable to Investor, except, in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of Investor to perform its obligations hereunder.    2     3. Company’s Representations and Warranties. Company represents and warrants to Investor that as of the date hereof: (i) Company is a corporation duly carry on its business as now being conducted; (ii) Company is duly qualified as a foreign corporation to do business and is in good standing in each jurisdiction where the nature of the business conducted or property owned by it makes such qualification necessary; (iii) Company has registered its shares of common stock, $0.001 par value per share (the “Common Stock”), under Section 12(b) of the 1934 Act, and is obligated to file reports pursuant to Section 13 or Section 15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated hereby and thereby, have been duly and validly authorized by Company and all necessary actions have been taken; (v) this Agreement, the Note, and the other Transaction Documents have been duly executed and delivered by Company and constitute the valid and binding obligations of Company enforceable in accordance with their terms; (vi) the execution and delivery of the Transaction Documents by Company, the issuance of the Note in accordance with the terms hereof, and the consummation by Company of the other transactions contemplated by the Transaction Documents do not and will not conflict with or result in a breach by Company of any of the terms or provisions of, or constitute a default under (a) Company’s formation documents or bylaws, each as currently in effect, (b) any indenture, mortgage, deed of trust, or other material agreement or instrument to which Company is a party or by which it or any of its properties or assets are bound, including, without limitation, any listing agreement for the Common Stock, or (c) any existing applicable law, rule, or regulation or any applicable decree, judgment, or order Company or any of Company’s properties or assets; (vii) no further authorization, approval or consent of any court, governmental body, regulatory agency, self-regulatory organization, or stock exchange or market or the stockholders or any lender of Company is required to be obtained by Company for the issuance of the Note to Investor or the entering into any of the Transaction Documents that has not been obtained; (viii) none of Company’s filings with the SEC contained, at the time they were filed, any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading; (ix) Company has filed all reports, schedules, forms, statements and other documents required to be filed by Company with the SEC under the 1934 Act on a timely basis or has received a valid extension of such time of filing and has filed any such report, schedule, form, statement or other document prior to the expiration of any such extension; (x) other than as disclosed in Company’s filings with the SEC, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the knowledge of Company, threatened against or affecting Company before or by any governmental authority or non-governmental department, commission, board, bureau, agency or instrumentality or any other person, wherein an unfavorable decision, ruling or finding would have a material adverse effect on Company or which would adversely affect the validity or enforceability of, or the authority or ability of Company to perform its obligations under, any of the Transaction Documents; (xi) Company has not consummated any material financing transaction that has not been disclosed in a periodic filing or current report with the SEC under the 1934 Act; (xii) Company is not, nor has it been at any time in the previous twelve (12) months, a “Shell Company,” as such type of “issuer” is described in Rule 144(i)(1) under the 1933 Act; (xiii) with respect to any commissions, placement agent or finder’s fees or similar payments that will or would become due and owing by Company to any person or entity as a result of this Agreement or the transactions contemplated hereby (“Broker Fees”), any such Broker Fees will be made in full compliance with all applicable laws and regulations and only to a person or entity that is a registered investment adviser or registered broker-dealer; (xiv) Investor shall have no obligation with respect to any Broker Fees or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this subsection that may be due in connection with the transactions contemplated hereby and Company shall indemnify and hold harmless each of Investor, Investor’s employees, officers, directors, stockholders, members, managers, agents, and partners, and their respective affiliates, from and against all claims, losses, damages, costs (including the costs of preparation and attorneys’ fees) and expenses suffered in respect of any such claimed Broker Fees; (xv) neither Investor nor any of its officers, directors, stockholders, members, managers, employees, agents or representatives has made any representations or warranties to Company or any of its officers, directors, employees, agents or representatives except as expressly set forth in the Transaction Documents and, in making its decision to enter into the transactions contemplated by the Transaction Documents, Company is not relying on any representation, warranty, covenant or promise of Investor or its officers, directors, members, managers, employees, agents or representatives other than as set forth in the Transaction Documents; (xvi) Company acknowledges that the State of Utah has a reasonable relationship and sufficient contacts to the transactions contemplated by the Transaction Documents and any dispute that may arise related thereto such that the laws and venue of the State of Utah, as set forth more specifically in Section 9.3 below, shall be applicable to the Transaction Documents and the transactions contemplated therein; and (xvii) Company has performed due diligence and background research on Investor and its affiliates including, without limitation, John M. Fife, and, to its satisfaction, has made inquiries with respect to all matters Company may consider relevant to the undertakings and relationships contemplated by the Transaction Documents including, among other things, the following: Ill.); and FINRA Case #2011029203701. Company, being aware of the matters described in subsection (xvii) above, acknowledges and agrees that such matters, or any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and covenants and agrees it will not use any such information as a defense to performance of its obligations under the Transaction Documents or in any attempt to avoid, modify or reduce such obligations.    3     4. Company Covenants. Until all of Company’s obligations under all of the the following covenants: (i) so long as Investor beneficially owns the Note, Company will timely file on the applicable deadline all reports required to be filed with the SEC pursuant to Sections 13 or 15(d) of the 1934 Act, and will take all reasonable action under its control to ensure that adequate current public information with respect to Company, as required in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit such termination; (ii) the Common Stock shall be listed or quoted for trading on any of (a) NYSE, (b) NASDAQ, (c) OTCQX, or (d) OTCQB; (iii) trading in Company’s Common Stock will not be suspended, halted, chilled, frozen, reach zero bid or otherwise cease trading on Company’s principal trading market for a period of five (5) consecutive Trading Days (as defined in the Note); (iv) Company will not, to the best of its knowledge after due inquiry, enter into any kind of financing transaction with John Kirkland or any entity affiliated with or controlled by John Kirkland without Investor’s prior written consent, which consent may be granted or withheld in Investor’s sole and absolute discretion; and (v) Company will not issue any debt instrument or incur any debt other than trade payables in the ordinary course of business without Investor’s prior written consent, which consent may be granted or withheld in Investor’s sole discretion.   5. Conditions to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Note to Investor at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:   5.1. Investor shall have executed this Agreement and delivered the same to Company.   5.2. Investor shall have delivered the Purchase Price to Company in accordance with Section 1.2 above.   6. Conditions to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Note at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these conditions are for Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:   6.1. Company shall have executed this Agreement and the Note and delivered the same to Investor.   6.2. Company shall have delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto as Exhibit B evidencing   6.3. Company shall have delivered to Investor fully executed copies of all other   7. Right of First Refusal. If at any time while the Note is outstanding, Company intends to enter into a financing with a Person pursuant to which it will issue Company securities that (A) have or may have conversion rights of any kind, contingent, conditional or otherwise, in which the number of shares that may be issued pursuant to such conversion right varies with the market price of the Common Stock, or (B) are or may become convertible into Common Stock (including without limitation convertible debt, warrants or convertible preferred stock), with a conversion price that varies with the market price of the Common Stock, even if such security only becomes convertible following an event of default, the passage of time, or another trigger event or condition (such a financing, a “Future Offering”), then Company must first offer such opportunity to Investor to provide such financing to Company on the same terms as each respective Person’s term no later than five (5) Trading Days immediately prior to the Trading Day of the expected announcement of the Future Offering. Should Investor be unwilling or unable to provide such financing to Company within five (5) Trading Days from Investor’s receipt of notice of the Future Offering from Company, then Company may obtain such financing from that respective Person upon the exact same terms and conditions offered by Company to Investor, which transaction must be completed within 30 days after the date of the notice. If Company does not receive the financing from the respective Person within 30 days after the date of the respective notice, then Company must again offer the financing opportunity to Investor as described above, and the process detailed above shall be repeated. For avoidance of doubt, the issuance of shares of Common Stock under, pursuant to, in exchange for or in connection with any contract or instrument, whether convertible or not, is deemed a Future Offering or exchange. This Section 7 shall not apply to an Exempt Issuance (as defined below) or to a registered offering made pursuant to a registration statement on Form S-1 or Form S-3.    4     8. Participation in Future Offering.   8.1. So long as the Note is outstanding, upon any offer of securities by Company with any term or condition more favorable to the holder of such security or with a term in favor of the holder of such security that was not similarly provided to Investor in the Transaction Documents (“Favorable Transaction”), then Company shall notify Investor of such additional or more Favorable Transaction and, Investor may, at its option, have the right to participate in such Favorable Transaction on the same terms and conditions in an amount up to the aggregate amount then outstanding under the Note. The types of terms contained in another security that may be more favorable to the holder of such security include, but are not limited to, terms addressing conversion rights, conversion discounts, conversion lookback periods, interest rates, original issue discounts, stock sale price, conversion price per share, warrant coverage, warrant exercise price, and anti-dilution/conversion and exercise price resets.   8.2. Notwithstanding the foregoing, this Section 8 shall not apply in respect of an Exempt Issuance, a transaction under Section 3(a)(10) of 1933 Act, a registered offering made pursuant to a registration statement on Form S-1 or Form S-3, or in connection with the satisfaction of outstanding trade payables. “Exempt Issuance” means the issuance of (a) shares of Common Stock or any securities of Company which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock (“Common Stock Equivalents”), to consultants, employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose or as approved by the Board of Directors or a majority of the members of a committee of directors established for such purpose for services rendered to the Company; (b) securities upon the exercise or exchange of or conversion of the Note 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, floor price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities; and (c) securities issued pursuant to acquisitions, dispositions or strategic transactions approved by a majority of the disinterested directors of the Company.   9. Miscellaneous. The provisions set forth in this Section 9 shall apply to this shall govern.   9.1. Certain Capitalized Terms. To the extent any capitalized term used in any terminated.    5     9.2. Arbitration of Claims. The parties shall submit all Claims (as defined in Exhibit C) arising under this Agreement or any other Transaction Document or any arbitration provisions set forth in Exhibit C attached hereto (the “Arbitration Provisions”). For the avoidance of doubt, the parties agree that the injunction described in Section 9.4 below may be pursued in an arbitration that is separate and apart from any other arbitration regarding other Claims arising under the Transaction Documents. The parties hereby acknowledge and agree that the Arbitration Provisions are unconditionally binding on the parties hereto and are severable from all other provisions of this Agreement. By executing this Agreement, Company represents, warrants and covenants that Company has reviewed the Arbitration Provisions carefully, consulted with legal counsel about such Arbitration Provisions.   9.3. Governing Law; Venue. This Agreement shall be construed and enforced in the exclusive venue for arbitration of any dispute arising out of or relating to any Transaction Document or the relationship of the parties or their affiliates shall be in Salt Lake County, Utah. Without modifying the parties’ obligations to resolve disputes hereunder pursuant to the Arbitration Provisions, for any Company’s transfer agent (the “Transfer Agent”) and Company, such litigation specifically includes, without limitation any action between or involving Company and the Transfer Agent or otherwise related to Investor in any way (specifically including, without limitation, any action where Company seeks to obtain an injunction, temporary restraining order, or otherwise prohibit the Transfer Agent from issuing shares of Common Stock to Investor for any reason)), each party hereto hereby (i) consents to and expressly submits to the exclusive Utah, (ii) expressly submits to the exclusive venue of any such court for the purposes hereof, (iii) agrees to not bring any such action (specifically Agent from issuing shares of Common Stock to Investor for any reason) outside of any state or federal court sitting in Salt Lake County, Utah, and (iv) waives any claim of improper venue and any claim or objection that such courts are an inconvenient forum or any other claim, defense or objection to the bringing of any such proceeding in such jurisdiction or to any claim that such venue of the suit, action or proceeding is improper. Finally, Company covenants and agrees to name Investor as a party in interest in, and provide written notice to Investor in accordance with Section 9.12 below prior to bringing or filing, any action (including without limitation any filing or action against any person or entity that is not a party to this Agreement, including without limitation the Transfer Agent) that is related in any way to the Transaction Documents or any transaction contemplated herein or therein, including without limitation any action brought by Company to enjoin or prevent the issuance of any shares of Common Stock to Investor by the Transfer Agent, and further agrees to timely name Investor as a party to any such action. Company acknowledges that the governing law and venue provisions set forth in this Section 9.3 are material terms to induce Investor to enter into the Transaction Documents and that but for Company’s agreements set forth in this Section 9.3 Investor would not have entered into the Transaction Documents.    6     9.4. Specific Performance. Company acknowledges and agrees Investor may suffer irreparable harm in the event that Company fails to perform any material be entitled to one or more injunctions to prevent or cure breaches of the Documents, at law or in equity. Company specifically agrees that following an Event of Default (as defined in the Note) under the Note, Investor shall have the right to seek and receive injunctive relief from a court or an arbitrator prohibiting Company from issuing any of its Common Stock or preferred stock to any party unless the Note is being paid in full simultaneously with such issuance. For the avoidance of doubt, in the event Investor seeks to obtain an injunction from a court or an arbitrator against Company or specific performance terms of the Transaction Documents, nor shall Investor’s pursuit of an injunction prevent Investor, under the doctrines of claim preclusion, issues preclusion, res judicata or other similar legal doctrines, from pursuing other Claims in the future in a separate arbitration.   9.5. Counterparts. Each Transaction Document may be executed in any number of executed original thereof.   9.6. Document Imaging. Investor shall be entitled, in its sole discretion, to image or make copies of all or any selection of the agreements, instruments,   9.7. Headings. The headings of this Agreement are for convenience of reference Agreement.   9.8. Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision hereof.    7     9.9. Entire Agreement. This Agreement, together with the other Transaction Documents, contains the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither Company nor Investor makes any representation, warranty, Documents shall govern.   9.10. No Reliance. Company acknowledges and agrees that neither Investor nor any of its officers, directors, members, managers, representatives or agents has made any representations or warranties to Company or any of its officers, directors, representatives, agents or employees except as expressly set forth in the Transaction Documents and, in making its decision to enter into the transactions contemplated by the Transaction Documents, Company is not relying on any representation, warranty, covenant or promise of Investor or its officers, directors, members, managers, agents or representatives other than as   9.11. Amendments. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both parties hereto.   9.12. Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall be deemed effectively given on the earliest of: (i) the date delivered, if delivered by personal delivery as against written receipt therefor or by email to an executive officer, or by facsimile (with successful transmission confirmation), (ii) the earlier of the date delivered or the third Trading Day after deposit, postage prepaid, in the United States Postal Service by certified mail, or (iii) the earlier of the date delivered or the third Trading Day after mailing by express courier, with delivery costs and fees prepaid, in each case, addressed to each of the other parties thereunto entitled at the following addresses (or at such other addresses as such party may designate by five (5) calendar days’ advance written notice similarly given to each of the other parties hereto):   If to Company:   Inpixon Attn: Nadir Ali 2479 East Bayshore Road, Suite 195 Palo Alto, California 94303 [email protected]   If to Investor:   St. George Investments LLC Attn: John Fife Chicago, Illinois 60601 [email protected]    8       Attn: Jonathan Hansen Lehi, Utah 84043 [email protected]   9.13. Successors and Assigns. This Agreement or any of the severable rights and   9.14. Survival. The representations and warranties of Company and the agreements and covenants set forth in this Agreement shall survive the Closing hereunder   9.15. Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other hereby.   9.16. Investor’s Rights and Remedies Cumulative; Liquidated Damages. All rights, and default interest due under the Note and the other Transaction Documents are intended by the parties to be, and shall be deemed, liquidated damages. The parties agree that such liquidated damages are a reasonable estimate of Investor’s actual damages and not a penalty, and shall not be deemed in any way to limit any other right or remedy Investor may have hereunder, at law or in equity. The parties acknowledge and agree that under the circumstances existing at the time this Agreement is entered into, such liquidated damages are fair and reasonable and are not penalties. All fees, charges, and default interest provided for in the Transaction Documents are agreed to by the parties to be based upon the obligations and the risks assumed by the parties as of the Closing Date and are consistent with investments of this type. The liquidated damages provisions of the Transaction Documents shall not limit or preclude a party from pursuing any other remedy available at law or in equity; provided, however, that the liquidated damages provided for in the Transaction Documents are intended to be in lieu of actual damages.    9     9.17. Attorneys’ Fees and Cost of Collection. In the event of any arbitration or amount of the reasonable attorneys’ fees, deposition costs, and expenses paid by such prevailing party in connection with arbitration or litigation without reduction or apportionment based upon the individual claims or defenses giving rise to the fees and expenses. Nothing herein shall restrict or impair an arbitrator’s or a court’s power to award fees and expenses for frivolous or bad faith pleading. If (i) the Note is placed in the hands of an attorney for collection or enforcement prior to commencing arbitration or legal proceedings, or is collected or enforced through any arbitration or legal proceeding, or Investor otherwise takes action to collect amounts due under the Note or to enforce the provisions of the Note, or (ii) there occurs any bankruptcy, reorganization, receivership of Company or other proceedings affecting Company’s creditors’ rights and involving a claim under the Note; then Company shall pay the costs incurred by Investor for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding, including, without limitation, attorneys’ fees, expenses, deposition costs, and disbursements.   9.18. Waiver. No waiver of any provision of this Agreement shall be effective No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in writing.   9.19. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR   9.20. Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement and the other Transaction Documents.   9.21. No Changes; Signature Pages. Company, as well as the person signing each Transaction Document on behalf of Company, represents and warrants to Investor that it has not made any changes to this Agreement or any other Transaction Document except those that have been conspicuously disclosed to Investor in a “redline” or similar draft of the applicable Transaction Document, which clearly marks all changes Company has made to the applicable Transaction Document. Moreover, the versions of the Transaction Documents signed by Company are the same versions Investor delivered to Company as being the “final” versions of the Transaction Documents and Company represents and warrants that it has not made any changes to such “final” versions of the Transaction Documents and that the versions Company signed are the same versions Investor delivered to it. In the event Company has made any changes to any Transaction Document that are not conspicuously disclosed to Investor in a “redline” or similar draft of the applicable Transaction Document and that have not been explicitly accepted and agreed upon by Investor, Company acknowledges and agrees that any such changes shall not be considered part of the final document set. Finally, and in furtherance of the foregoing, Company agrees and authorizes Investor to compile the “final” versions of the Transaction Documents, which shall consist of Company’s executed signature pages for all Transaction Documents being applied to the last set of the Transaction Documents that Investor delivered to Company, and Company agrees that such versions of the Transaction Documents that have been collated by Investor shall be deemed to be the final versions of the Transaction Documents for all purposes.   9.22. Voluntary Agreement. Company has carefully read this Agreement and each of the other Transaction Documents and has asked any questions needed for Company to understand the terms, consequences and binding effect of this Agreement and each of the other Transaction Documents and fully understand them. Company has had the opportunity to seek the advice of an attorney of Company’s choosing, or has waived the right to do so, and is executing this Agreement and each of the other Transaction Documents voluntarily and without any duress or undue influence by Investor or anyone else.      10       SUBSCRIPTION AMOUNT:    Principal Amount of Note:  $952,500.00         Purchase Price:  $750,000.00        INVESTOR:       St. George Investments LLC   By: Fife Trading, Inc., its Manager       By: /s/ John M. Fife     John M. Fife, President       COMPANY:     Inpixon           By: /s/ Nadir Ali   Printed Name: Nadir Ali   Title: CEO   [Signature Page to Note Purchase Agreement]           ATTACHED EXHIBITS:    Exhibit A Note   Exhibit B Secretary’s Certificate   Exhibit C Arbitration Provisions            eXHIBIT A   NOTE   See Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on November 22, 2019.    Exhibit A-1     eXHIBIT B*   SECRETARY’S CERTIFICATE   Exhibit B-1     Exhibit C   ARBITRATION PROVISIONS   1. Dispute Resolution. For purposes of this Exhibit C, the term “Claims” means any disputes, claims, demands, causes of action, requests for injunctive relief, Provisions (defined below)) or any of the other Transaction Documents. For the to these Arbitration Provisions or with a court will not later prevent Investor under the doctrines of claim preclusion, issue preclusion, res judicata or other similar legal doctrines from pursuing other Claims in a separate arbitration in the future. The parties to this Agreement (the “parties”) hereby agree that the Claims may be arbitrated in one or more Arbitrations pursuant to these Arbitration Provisions. The parties hereby agree that the arbitration provisions set forth in this Exhibit C (“Arbitration Provisions”) are binding on each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions) or declare the Agreement (or these Arbitration Provisions) or any other Transaction Document invalid or unenforceable for any reason is subject to these Arbitration Provisions. These Arbitration Provisions shall also survive any termination or expiration of the Agreement. Any capitalized term not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement.   2. Arbitration. Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”) to be conducted exclusively in Salt Lake County, Utah and pursuant to the terms set forth in these Arbitration Provisions. Subject to the arbitration appeal right provided for in Paragraph 5 below (the “Appeal Right”), the parties agree that the award of the arbitrator final and binding upon the parties, (b) the sole and exclusive remedy between them regarding any Claims, counterclaims, issues, or accountings presented or pleaded to the arbitrator, and (c) promptly payable in United States dollars free of any tax, deduction or offset (with respect to monetary awards). Subject to the Appeal Right, any costs or fees, including without limitation attorneys’ fees, incurred in connection with or incident to enforcing the Arbitration Award    3. The Arbitration Act. The parties hereby incorporate herein the provisions and Provisions.   4. Arbitration Proceedings. Arbitration between the parties will be subject to the following:    4.1 Initiation of Arbitration. Pursuant to Section 110 of the Arbitration Act, the parties agree that a party may initiate Arbitration by giving written notice to the other party (“Arbitration Notice”) in the same manner that notice is permitted under Section 9.12 of the Agreement; provided, however, that the other party under Section 9.12 of the Agreement (the “Service Date”). After the or fax pursuant to Section 9.12 of the Agreement or any other method permitted the remedies sought, and the election to commence Arbitration proceedings. All Claims in the Arbitration Notice must be pleaded consistent with the Utah Rules of Civil Procedure.    Exhibit C-1     4.2 Selection and Payment of Arbitrator.             Arbitration Association.    the Arbitration Award.    4.3 Applicability of Certain Utah Rules. The parties agree that the Arbitration    4.4 Answer and Default. An answer and any counterclaims to the Arbitration Notice shall be required to be delivered to the party initiating the Arbitration within twenty (20) calendar days after the Arbitration Commencement Date. If an answer is not delivered by the required deadline, the arbitrator must provide written notice to the defaulting party stating that the arbitrator will enter a default award against such party if such party does not file an answer within five (5) calendar days of receipt of such notice. If an answer is not filed within the five (5) day extension period, the arbitrator must render a default award, consistent with the relief requested in the Arbitration Notice, against a party that fails to submit an answer within such time period.    Exhibit C-2     4.5 Related Litigation. The party that delivers the Arbitration Notice to the other party shall have the option to also commence concurrent legal proceedings with any state or federal court sitting in Salt Lake County, Utah (“Litigation Arbitration Act.    4.6 Discovery. Pursuant to Section 118(8) of the Arbitration Act, the parties agree that discovery shall be conducted as follows:    limited as follows:    (i) To facts directly connected with the transactions contemplated by the Agreement.    (ii) To facts and information that cannot be obtained from another source or in       such discovery requests a detailed explanation of how the proposed discovery requests satisfy the requirements of these Arbitration Provisions and the Utah Rules of Civil Procedure. The receiving party will then be allowed, within five (5) calendar days of receiving the proposed discovery requests, to submit to the arbitrator an estimate of the attorneys’ fees and costs associated with responding to such written discovery requests and a written challenge to each applicable discovery request. After receipt of an estimate of attorneys’ fees and costs and/or challenge(s) to one or more discovery requests, consistent with subparagraph (c) above, the arbitrator will within three (3) calendar days make a finding as to the likely attorneys’ fees and costs associated with responding to the discovery requests and issue an order that (i) requires the requesting party to prepay the attorneys’ fees and costs associated with responding to the discovery requests, and (ii) requires the responding party to respond to the discovery requests as limited by the arbitrator within twenty-five (25) calendar days of the arbitrator’s finding with respect to such discovery requests. If a party entitled to submit an estimate of attorneys’ fees and costs and/or a challenge to discovery requests fails to do so within such 5-day period, the arbitrator will make a finding that (A) there are no attorneys’ fees or costs associated with responding to such discovery requests, and (B) the responding party must respond to such discovery requests (as may be limited by the arbitrator) within twenty-five (25) calendar days of the arbitrator’s finding with respect to such discovery requests. Any party submitting any written discovery requests, including without limitation interrogatories, requests for production subpoenas to a party or a third party, or requests for admissions, must prepay the estimated attorneys’ fees and costs, before the responding party has any obligation to produce or respond to the same, unless such obligation is deemed waived as set forth above.    Exhibit C-3           4.6 Dispositive Motions. Each party shall have the right to submit dispositive regardless.    4.7 Confidentiality. All information disclosed by either party (or such party’s considered confidential in nature. Each party agrees not to disclose any confidential information received from the other party (or its agents) during the Arbitration process (including without limitation during the discovery process or any Appeal) unless (a) prior to or after the time of disclosure such information becomes public knowledge or part of the public domain, not as a result of any inaction or action of the receiving party or its agents, (b) such information is required by a court order, subpoena or similar legal duress to be disclosed if such receiving party has notified the other party thereof in writing and given it a reasonable opportunity to obtain a protective order from a court of competent jurisdiction prior to disclosure, or (c) such information is disclosed to the receiving party’s agents, representatives and legal counsel on a need to know basis who each agree in writing not to disclose such information to any third party. Pursuant to Section 118(5) of the Arbitration Act, the arbitrator is hereby authorized and directed to issue a protective order to prevent the disclosure of privileged information and confidential information upon the written request of either party.    4.8 Authorization; Timing; Scheduling Order. Subject to all other portions of these Arbitration Provisions, the parties hereby authorize and direct the arbitrator to take such actions and make such rulings as may be necessary to carry out the parties’ intent for the Arbitration proceedings to be efficient and expeditious. Pursuant to Section 120 of the Arbitration Act, the parties hereby agree that an Arbitration Award must be made within one hundred twenty (120) calendar days after the Arbitration Commencement Date. The arbitrator is hereby authorized and directed to hold a scheduling conference within ten (10) calendar days after the Arbitration Commencement Date in order to establish a scheduling order with various binding deadlines for discovery, expert testimony, and the submission of documents by the parties to enable the arbitrator to render a decision prior to the end of such 120-day period.    Exhibit C-4     4.9 Relief. The arbitrator shall have the right to award or include in the    4.10 Fees and Costs. As part of the Arbitration Award, the arbitrator is hereby    5. Arbitration Appeal.    5.1 Initiation of Appeal. Following the entry of the Arbitration Award, either shall be final. The parties acknowledge and agree that any Appeal shall be deemed part of the parties’ agreement to arbitrate for purposes of these Arbitration Provisions and the Arbitration Act.    5.2 Selection and Payment of Appeal Panel. In the event an Appellant delivers an    (a) Within ten (10) calendar days after the Appeal Date, the Appellee shall select and submit to the Appellant the names of five (5) arbitrators that are     Exhibit C-5     (b) If the Appellee fails to submit to the Appellant the names of the Proposed Appellee.    (c) If a selected Proposed Appeal Arbitrator declines or is otherwise unable to    (d) The date that all three (3) Proposed Appeal Arbitrators selected pursuant to member of the Appeal Panel. If Utah ADR Services ceases to exist or to provide a list of neutrals, then the arbitrators for the Appeal Panel shall be selected under the then prevailing rules of the American Arbitration Association.    (d) Subject to Paragraph 5.7 below, the cost of the Appeal Panel must be paid    5.3 Appeal Procedure. The Appeal will be deemed an appeal of the entire Arbitration Award. In conducting the Appeal, the Appeal Panel shall conduct a de novo review of all Claims described or otherwise set forth in the Arbitration Notice. Subject to the foregoing and all other provisions of this Paragraph 5, the Appeal Panel shall conduct the Appeal in a manner the Appeal Panel considers Award.    5.4 Timing.    (a) Within seven (7) calendar days of the Appeal Commencement Date, the Appellant (i) shall deliver or cause to be delivered to the Appeal Panel copies of the Appeal Notice, all discovery conducted in connection with the Arbitration, and all briefs, pleadings and other documents filed with the Original Arbitrator (which material Appellee shall have the right to review and supplement if necessary), and (ii) may, but is not required to, deliver to the Appeal Panel and to the Appellee a Memorandum in Support of the Appellant’s arguments concerning or position with respect to all Claims, counterclaims, issues, or accountings presented or pleaded in the Arbitration. Within seven (7) calendar days of the Appellant’s delivery of the Memorandum in Support, as applicable, the Appellee shall deliver to the Appeal Panel and to the Appellant a Memorandum in Opposition to the Memorandum in Support. Within seven (7) calendar days of the Appellee’s delivery of the Memorandum in Opposition, as applicable, the Appellant shall deliver to the Appeal Panel and to the Appellee a Reply Memorandum to the Memorandum in Opposition. If the Appellant shall fail to substantially comply with the requirements of clause (i) of this subparagraph    Exhibit C-6     (b) Subject to subparagraph (a) above, the parties hereby agree that the Appeal must be heard by the Appeal Panel within thirty (30) calendar days of the Appeal    5.5 Appeal Panel Award. The Appeal Panel shall issue its decision (the “Appeal Default Interest both before and after the Arbitration Award. Judgment upon the Appeal Panel Award will be entered and enforced by a state or federal court    5.6 Relief. The Appeal Panel shall have the right to award or include in the Appeal Panel Award any relief which the Appeal Panel deems proper under the punitive damages.    5.7 Fees and Costs. As part of the Appeal Panel Award, the Appeal Panel is hereby directed to require the losing party (the party being awarded the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be    6. Miscellaneous.    6.1 Severability. If any part of these Arbitration Provisions is found to violate or be illegal under applicable law, then such provision shall be modified to the minimum extent necessary to make such provision enforceable under applicable law, and the remainder of the Arbitration Provisions shall remain unaffected and in full force and effect.    6.2 Governing Law. These Arbitration Provisions shall be governed by the laws of    6.3 Interpretation. The headings of these Arbitration Provisions are for    6.4 Waiver. No waiver of any provision of these Arbitration Provisions shall be waiver.    6.5 Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of these Arbitration Provisions.          Exhibit C-7  

SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (the “Agreement”), dated as of June 17, 2009 among ADAMS GOLF, INC., a Delaware corporation, ADAMS GOLF HOLDING CORP., a Delaware corporation, ADAMS GOLF GP CORP., a Delaware corporation, ADAMS GOLF, LTD., a Texas limited partnership, ADAMS GOLF IP, L.P., a Delaware limited partnership, ADAMS GOLF MANAGEMENT CORP., a Delaware corporation, WGU, LLC, a Texas limited liability company (hereinafter the “Borrowers”) and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association) (the “Bank”);   WITNESSETH: WHEREAS, the Borrowers and Bank have entered into that certain Loan and Security Agreement dated as of November 13, 2007, as amended (the “Existing Loan Agreement”). WHEREAS, the parties hereto have agreed to amend the Existing Loan Agreement as set forth herein. NOW, THEREFORE, in consideration of the agreements herein contained and other good and valuable consideration, the parties hereby agree as follows: PART I DEFINITIONS SUBPART 1.1.  Certain Definitions.  Unless otherwise defined herein or the context otherwise requires, the following terms used in this Amendment, including its preamble and recitals, have the following meanings: “Amended Loan Agreement” means the Existing Loan Agreement as amended hereby. “Second Amendment Effective Date” shall have the meaning set forth in Subpart 4.1. SUBPART 1.2.  Other Definitions.  Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment, including its preamble and recitals, have the meanings provided in the Amended Loan Agreement.     PART II AMENDMENTS TO EXISTING LOAN AGREEMENT SUBPART 3.1.  Amendment to the Definition of “Applicable Margin”.  Effective on (and subject to the occurrence of) the Second Amendment Effective Date, the definition of  “Applicable Margin” is amended in its entirety so that such definition now reads as follows: “Applicable Margin” means (a) 2.50% with respect to LMIR Loans and (b) 0.00% with respect to Base Rate Loans.   SUBPART 3.2.  Amendment to Section 2.2.1.  Effective on (and subject to the occurrence of) the Second Amendment Effective Date, the following sentences are added to the end of Section 2.2.1:   Notwithstanding the foregoing, the Borrowers shall not be required to implement any lockbox arrangement required by this Section 2.2.1 unless Excess Availability at any time is less than $5,000,000.  If Excess Availability at any time is less than $5,000,000, Borrowers shall have a period of thirty (30) days thereafter to implement any lockbox arrangement required by this Section 2.2.1.   SUBPART 3.3.  Amendment to Section 7.1.  Effective on (and subject to the occurrence of) the Second Amendment Effective Date, the last sentence of Section 7.1 is amended in its entirety so that such sentence now reads as follows:   Notwithstanding the foregoing, the Borrowers shall not be required to maintain the foregoing Fixed Charge Coverage Ratio as of the last day of any month if the average amount of Excess Availability for such month exceeds $5,000,000.   PART IV CONDITIONS TO EFFECTIVENESS SUBPART 4.1.  Second Amendment Effective Date.  This Amendment shall be and become effective as of the date hereof when all of the conditions set forth in this Part IV shall have been satisfied or waived (the “Second Amendment Effective Date”), and thereafter this Amendment shall be known, and may be referred to, as “Second Amendment.” SUBPART 4.2.  Execution of Counterparts of Documents.  The Bank shall have received fully executed counterparts of this Amendment. SUBPART 4.3.  Fees and Expenses.  The Borrowers shall have paid all fees and expenses of the Bank in connection with this Amendment (including reasonable attorney’s fees). PART V MISCELLANEOUS SUBPART 5.1.  Cross-References.  References in this Amendment to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment.   2   SUBPART 5.2.  References in Other Loan Documents.  At such time as this Amendment shall become effective pursuant to the terms of Subpart 4.1, all references in the Existing Loan Agreement to the “Loan Agreement” and all references in the other Loan Documents to the “Loan Agreement” shall be deemed to refer to the Amended Loan Agreement. SUBPART 5.3.  Representations and Warranties of the Borrower.  Each Borrower hereby represents and warrants that (a) the representations and warranties contained in Section 4 of the Existing Loan Agreement (as amended by this Amendment) are correct in all material respects on and as of the date hereof as though made on and as of such date and after giving effect to the amendments contained herein and (b) no Default or Event of Default exists under the Existing Loan Agreement on and as of the date hereof and after giving effect to the amendments contained herein. SUBPART 5.4.  Counterparts.  This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. SUBPART 5.5.  Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF. SUBPART 5.6.  Successors and Assigns.  This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.   3   Each of the parties hereto has caused a counterpart of this Amendment to be duly executed and delivered as of the date first above written.   BORROWERS: ADAMS GOLF, INC.   ADAMS GOLF HOLDING CORP.   ADAMS GOLF GP CORP.   ADAMS GOLF MANAGEMENT CORP.       By: /S/ OLIVER G. BREWER III   Name:     Title:         ADAMS GOLF, LTD.   ADAMS GOLF IP, L.P.       By:   Adams Golf GP Corp., its general Partner         By: /S/OLIVER G. BREWERIII     Name:       Title:         WGU, LLC.       By: Adams Golf, Ltd., its sole member     By: Adams Golf GP Corp.,       its general partner         By:     Name:       Title:       BANK: WACHOVIA BANK, NATIONAL ASSOCIATION     By: /S/ Thomas P. Floyd   Name: Thomas P. Floyd   Title: Vice President    

Name: 2003/74/EC: Commission Decision of 31 January 2003 amending Commission Decisions 1999/283/EC and 2000/585/EC as regards Botswana (Text with EEA relevance) (notified under document number C(2003) 403) Type: Decision_ENTSCHEID Subject Matter: animal product; Africa; trade; agricultural policy; cooperation policy; tariff policy Date Published: 2003-02-04 Avis juridique important|32003D00742003/74/EC: Commission Decision of 31 January 2003 amending Commission Decisions 1999/283/EC and 2000/585/EC as regards Botswana (Text with EEA relevance) (notified under document number C(2003) 403) Official Journal L 028 , 04/02/2003 P. 0045 - 0050Commission Decisionof 31 January 2003amending Commission Decisions 1999/283/EC and 2000/585/EC as regards Botswana(notified under document number C(2003) 403)(Text with EEA relevance)(2003/74/EC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine, ovine and caprine animals and swine, fresh meat or meat products from third countries(1), as last amended by Regulation (EC) No 1452/2001(2), and in particular Article 14(3) thereof,Having regard to Council Directive 92/45/EC of 16 June 1992 on public health and animal health problems relating to the killing of wild game and the placing on the market of wild game meat(3), as last amended by Directive 97/79/EC(4), and in particular Article 16(3) thereof,Having regard to Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public health requirements governing trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A(I) to Directive 89/662/EEC and, as regards pathogens, to Directive 90/425/EEC(5), as last amended by Commission Decision 2003/42/EC(6), and in particular Article 10,Whereas:(1) The animal health and veterinary certification conditions for imports of fresh meat from certain African countries are laid down by Decision 1999/283/EC(7), as last amended by Decision 2002/646/EC(8).(2) The animal and public health and veterinary certification conditions for import of wild and farmed game meat and rabbit meat from third countries are laid down by Decision 2000/585/EC(9), as last amended by Decision 2002/646/EC.(3) An outbreak of foot-and-mouth disease was confirmed in Botswana in the approved EC zone number 6 on 7 January 2003, with the initial infection on the holding detected on 23 December 2002, and the competent veterinary authority of Botswana immediately suspended exports of de-boned fresh meat of bovine, ovine and caprine species and farmed and wild ungulates to the Community from the whole of the country.(4) The Botswanan authorities are carrying out emergency vaccination and investigations on the outbreak in order to assess the situation in the country. However, while the outcome of this assessment is not available it is not possible to regionalise Botswana to allow importation of de-boned fresh meat of bovine, ovine and caprine species and farmed and wild ungulates.(5) In this situation, the importation of fresh meat from Botswana may constitute a risk of introducing foot-and-mouth disease in the territory of the Community. In consequence importation of de-boned fresh meat of bovine, ovine and caprine species and farmed and wild ungulates should be temporarily suspended from the previously approved zones of Botswana.(6) However, the Botswanan authorities have provided detailed information on en route consignments of fresh meat sent to the Community, with guarantees that those consignments were produced before the date of infection. Therefore, these consignments and consignments obtained from animals slaughtered before the date of infection should be authorised for importation into the territory of the European Union.(7) The provisions of this Decision shall be reviewed within three months in particular in the light of the disease evolution and further information received from the authorities of Botswana.(8) Decisions 1999/283/EC and 2000/585/EC must be amended accordingly.(9) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,HAS ADOPTED THIS DECISION:Article 11. Annex II to Decision 1999/283/EC is replaced by the text in Annex I to this Decision.2. In Annex III to Decision 1999/283/EC, footnote 5 of the health attestation in model A is deleted.Article 21. Annex II to Decision 2000/585/EC is replaced by the text in Annex II to this Decision.2. In Annex III to Decision 2000/585/EC, footnote 8 of the health attestation in model A, and footnote 7 of the health attestation in model F are replaced by "Version Number referred to in the relevant and current Decision for fresh meat of the corresponding susceptible domestic species must be included."Article 3This Decision shall be reviewed within three months in the light of the evolution of the foot-and-mouth disease situation in Botswana.Article 4This Decision shall apply from 7 February 2003.Article 5This Decision is addressed to the Member States.Done at Brussels, 31 January 2003.For the CommissionDavid ByrneMember of the Commission(1) OJ L 302, 31.12.1972, p. 28.(2) OJ L 198, 21.7.2001, p. 11.(3) OJ L 268, 14.9.1992, p. 35.(4) OJ L 24, 30.1.1998, p. 31.(5) OJ L 62, 15.3.1993, p. 49.(6) OJ L 13, 18.1.2003, p. 24.(7) OJ L 110, 28.4.1999, p. 16.(8) OJ L 211, 7.8.2002, p. 23.(9) OJ L 251, 6.10.2000, p. 1.ANNEX I"ANNEX IIMODELS OF ANIMAL HEALTH CERTIFICATES TO BE REQUESTED>TABLE>"ANNEX II"ANNEX IIANIMAL HEALTH GUARANTEES TO BE REQUESTED ON CERTIFICATION OF WILD AND FARMED GAME MEAT AND RABBIT MEAT>TABLE>NB:(y) Only meat produced from animals slaughtered after 7 July 2002 and before 23 December 2002 can be imported into the Community.(x) Only meat produced from animals slaughtered after 7 March 2002 and before 23 December 2002 can be imported into the Community."

Exhibit 10.37 SECURITIES PURCHASE AGREEMENT THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made as of August , 2010 by and among Sionix Corporation, a Nevada corporation (the “Company”), and the purchaser whose name and address are set forth on the signature page annexed hereto (the “Purchaser”).The foregoing parties are sometimes referred to hereinafter individually as a “Party” or collectively as the “Parties.” RECITALS WHEREAS, pursuant to the Subscription Application of the Purchaser of even date herewith (each a “Subscription Application”), and pursuant to Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to sell to the Purchaser and the Purchaser desires to acquire from the Company that number of units of the Company’s securities (the “Units”) as are set forth on the Purchaser’s signature page annexed hereto, at a price of $0.06 per Unit, subject to the terms and conditions of this Agreement and the other documents or instruments contemplated hereby; and WHEREAS, each Unit consists of: (i) one share of the Company’s $0.001 par value common stock (the “Common Stock”), and (ii) a Warrant to purchase the number of shares of Common Stock equal to the number of Units purchased by the Purchaser multiplied by fifty percent (50%) (collectively, “Warrants”). Warrants to be issued in the form attached hereto as ExhibitA with an exercise price of $0.17 per share for a five-year period commencing upon the Closing. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby covenant and agree as follows: AGREEMENT Section 1.Sale and Issuance of Units. 1.1Subject to the terms and conditions of this Agreement, the Company’s board of directors has authorized the sale and issuance of up to 33,333,333 Units (the “Offering”).At the Closing, the Company shall sell and issue to the Purchaser, and the Purchaser shall purchase from the Company, the number of Units set forth on the Purchaser’s signature page hereto. The Company intends to enter into this same form of purchase agreement with certain other purchasers (collectively, the “Other Purchasers”, and collectively with the Purchaser, the “Purchasers”) and expects to complete sales of Units to them.The maximum number of Units that the Company may sell to the Purchasers is 33,333,333. The Purchaser’s obligations hereunder are expressly not subject to or conditioned on the purchase of Units by any or all of such Other Purchasers. 1.2The aggregate purchase price for the Units to be purchased by the Purchaser (the “Purchase Price”) shall be the amount set forth on the Purchaser’s signature page hereto. 1 Section 2.The Closing. 2.1The closing of the sale and issuance to the Purchaser (the “Closing”) shall take place on the date when the Company’s legal counsel, Richardson & Patel, LLP (the “Escrow Agent”), receives all of the materials required pursuant to the Escrow Agreement annexed hereto as Exhibit B (the “Escrow Agreement”), including, without limitation, immediately available funds via wire transfer or a certified check equal to the subscription amount set forth on the Purchaser’s signature page hereto. 2.2At the Closing, the Company shall instruct its transfer agent to issue and deliver to the Purchaser a certificate representing the Common Stock, against receipt by the Escrow Agent of a certified bank check or wire transfer in an aggregate amount equal to the Purchase Price for the Units set forth on the Purchaser’s signature page hereto. Section 3.Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser as follows: 3.1Organization. The Company is duly organized, validly existing and in good standing under the laws of the State of Nevada and is qualified to conduct its business as a foreign corporation in each jurisdiction where the failure to be so qualified would have a material adverse effect on the Company. 3.2Authorization of Agreement, Etc. The execution, delivery, and performance by the Company of its obligations under this Agreement, the Escrow Agreement, the Subscription Application, the Warrants and each other document or instrument contemplated hereby or thereby (collectively, the “Transaction Documents”) has been duly authorized by all requisite corporate action on the part of the Company; and this Agreement and the Transaction Documents have been duly executed and delivered by the Company.Each of the Transaction Documents, when executed and delivered by the Company, constitutes the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, or other similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). 3.3 Issuance of Common Stock and Warrants. The Units are duly authorized and, when paid for and issued in accordance with the Transaction Documents, will be duly and validly issued, fully paid, and nonassessable, free and clear of all liens. Section 4.Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company as follows: 2 4.1Authorization of the Documents. The Purchaser has all requisite power and authority (corporate or otherwise) to execute, deliver, and perform its obligations under the Transaction Documents, and the execution, delivery, and performance by the Purchaser of its obligations under the Transaction Documents has been duly authorized by all requisite action on the part of the Purchaser and each such Transaction Document, when executed and delivered by the Purchaser, shall constitute the valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). 4.2Investment Representations. All of the representations, warranties, and information of the Purchaser as set forth in the Purchaser’s Subscription Application are incorporated by reference herein, shall be deemed to be a part hereof, and shall be true and correct at the Closing with the same force and effect as if made by the Purchaser as of the date thereof. 4.3 Access to Company Information. The Purchaser acknowledges that it has been afforded access and the opportunity to obtain all financial and other information concerning the Company that such Purchaser desires (including the opportunity to meet with the Company’s executive officers, either in person or telephonically). The Purchaser has reviewed copies of all reports filed by the Company (the “Filings”) with the Securities and Exchange Commission (the “Commission”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since September 30, 2007, all of which are available for review at www.sec.gov.The Purchaser further acknowledges that it is familiar with the contents of the Filings and that there is no further information about the Company that the Purchaser desires in determining whether to acquire the Units in the Offering. 4.4Risk Factors The Purchaser understands that an investment in the Units entails a substantial risk of loss.The purchaser has read and understands all of the Risk Factors set forth in the Company’s annual report on Form 10-K filed with the Commission on January 13, 2010. Section 5.Brokers and Finders. The Company will pay NYPPEX, LLC (“NYPPEX”), a registered broker-dealer engaged as a finder for the Company, (i) approximately 10% of the Purchase Price and (ii) a warrant, in substantially the same form as the Warrants, to purchase an aggregate of approximately 10% of the number of shares of Common Stock issued to the Purchaser at the Closing at an exercise price of $0.06 per share for a five-year period commencing upon the Closing.NYPPEX is not serving as placement agent for the Offering and has not performed any due diligence on the Company.The Purchaser acknowledges and agrees that NYPPEX is not making any recommendation to the Purchaser with respect to the Units, and that any and all due diligence must be performed by the Purchaser prior to making an investment in the Offering. 3 Section 6.Indemnification by the Purchaser. The Purchaser hereby agrees to indemnify and defend (with counsel acceptable to the Company) the Company and its officers, directors, employees, and agents and hold them harmless from and against any and all liability, loss, damage, cost, or expense, including costs and reasonable attorneys’ fees, incurred on account of or arising from: (a)any breach of or inaccuracy in any of the Purchaser’s representations, warranties, or agreements made herein, in any of the Transaction Documents, or in any document or instrument contemplated hereby or thereby; and (b)any action, suit, or proceeding based on a claim that the Purchaser’s representations, warranties or agreements made herein, in any of the Transaction Documents, or in any document or instrument contemplated hereby or thereby, were inaccurate or misleading, or otherwise cause for obtaining damages or redress from the Company or any current or former officer, director, employee, or agent of the Company under the Securities Act. Section 7.Successors and Assigns. This Agreement shall bind and inure to the benefit of the Company, the Purchaser, and their respective successors and assigns. Section 8.Entire Agreement. This Agreement and the other writings and agreements referred to in this Agreement or delivered pursuant to this Agreement contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or verbal, among the Parties with respect thereto. Section 9.Notices. All notices, demands and requests of any kind to be delivered to any Party in connection with this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or if sent by internationally-recognized overnight courier or by registered or certified mail, return receipt requested and postage prepaid, addressed as follows: if to the Company, to: Sionix Corporation 2801 Ocean Park Blvd., Suite 339 Santa Monica, CA 90405 Attention: David R. Wells, President & CFO 4 with a copy to: Richardson & Patel LLP 10900 Wilshire Blvd., Suite 500 Los Angeles, CA 90025 Attention: Addison Adams if to the Purchaser, to: at the address of the Purchaser set forth on the Purchaser’s signature page hereto; or to such other address as the Party to whom notice is to be given may have furnished to the other Parties to this Agreement in writing in accordance with the provisions of this Section.Any such notice or communication shall be deemed to have been received (i) in the case of personal delivery, on the date of such delivery, (ii) in the case of internationally-recognized overnight courier, on the next business day after the date when sent and (iii) in the case of mailing, on the third business day following that on which the piece of mail containing such communication is posted. Section 10.Amendments. This Agreement may not be modified or amended, nor may any provision of this Agreement be waived, except as evidenced by a written agreement duly executed by Purchasers who hold a majority of the Common Stock and shares of Common Stock underlying Warrants acquired in the Offering. Section 11.Governing Law; Waiver of Jury Trial. All questions concerning the construction, interpretation, and validity of this Agreement shall be governed by and construed and enforced in accordance with the domestic laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether in the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California.In furtherance of the foregoing, the internal law of the State of California will control the interpretation and construction of this Agreement, even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive law of some other jurisdiction would ordinarily or necessarily apply. Section 12.Submission to Jurisdiction. Any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of California and the United States of America located in the City of Los Angeles, California, and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts.The Purchaser hereby irrevocably waives, in connection with any such action or proceeding, any objection, including, without limitation, any objection to the venue or based on the grounds of forum non conveniens, which it may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdictions.The Purchaser hereby irrevocably consents to the service of process of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to it at its address as set forth herein. 5 Section 13.Severability. It is the desire and intent of the Parties that the provisions of this Agreement be enforced to the fullest extent permissible under the law and public policies applied in each jurisdiction in which enforcement is sought.Accordingly, in the event that any provision of this Agreement would be held in any jurisdiction to be invalid, prohibited, or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited, or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Section 14.Independence of Agreements, Covenants, Representations and Warranties. All agreements and covenants hereunder shall be given independent effect so that if a certain action or condition constitutes a default under a certain agreement or covenant, the fact that such action or condition is permitted by another agreement or covenant shall not affect the occurrence of such default, unless expressly permitted under an exception to such covenant.In addition, all representations and warranties hereunder shall be given independent effect so that if a particular representation or warranty proves to be incorrect or is breached, the fact that another representation or warranty concerning the same or similar subject matter is correct or is not breached will not affect the incorrectness of or a breach of a representation and warranty hereunder.The exhibits and any schedules annexed hereto are hereby made part of this Agreement in all respects. Section 15.Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart of this Agreement shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.Facsimile counterpart signatures to this Agreement shall be acceptable and binding. Section 16.Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Section 17.Expenses. Each Party shall pay its own fees and expenses incurred in connection with the negotiation, execution, delivery and performance of this Agreement, the Transaction Documents and any document or instrument contemplated hereby or thereby. 6 Section 18.Preparation of Agreement. The Company prepared this Agreement and the Transaction Documents solely on its behalf.Each Party to this Agreement acknowledges that: (i) the Party had the advice of, or sufficient opportunity to obtain the advice of, legal counsel separate and independent of legal counsel for any other Party hereto; (ii) the terms of the transactions contemplated by this Agreement are fair and reasonable to such Party; and (iii) such Party has voluntarily entered into the transactions contemplated by this Agreement without duress or coercion.Each Party further acknowledges that such Party was not represented by the legal counsel of any other Party hereto in connection with the transactions contemplated by this Agreement, nor was he or it under any belief or understanding that such legal counsel was representing his or its interests.Each Party agrees that no conflict, omission, or ambiguity in this Agreement, or the interpretation thereof, shall be presumed, implied, or otherwise construed against any other Party to this Agreement on the basis that such Party was responsible for drafting this Agreement. Section 19.Use of Proceeds. The Company shall use the net proceeds from the Offering for general working capital purposes.The term “Company indebtedness” shall not include account and trade payables incurred in the ordinary course of business or accrued but unpaid wages or consulting fees. [SIGNATURE PAGES FOLLOW] 7 IN WITNESS WHEREOF, each of the undersigned has duly executed this Securities Purchase Agreement as of the date first written above. SIONIX CORPORATION Date: By: /s/ Name: David R. Wells Title:President and CFO [PURCHASER’S SIGNATURE PAGE FOLLOWS] Sionix Corporation Securities Purchase Agreement, Aug10 8 PURCHASER SIGNATURE PAGE TO SIONIX CORPORATION SECURITIES PURCHASE AGREEMENT PURCHASER: Name of Purchaser (Individual or Name of Individual representing Institution) Purchaser (if an Institution) Title of Individual representing Signature of Individual Purchaser or Purchaser (if an Institution) Individual representing Purchaser Address: Telephone: Facsimile: Number of Units Aggregate Purchase Price Sionix Corporation Securities Purchase Agreement, Aug10 9 EXHIBIT A Form of Warrant Sionix Corporation Securities Purchase Agreement, Aug10 10 EXHIBIT B Escrow Agreement Sionix Corporation

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):July 16, 2010 ALTO GROUP HOLDINGS, INC. (ExactName of Registrant as Specified in Charter) Nevada 000-53592 27-0686507 (State of Other Jurisdiction (Commission File (IRS Employer Of Incorporation) Number) Identification No.) 10757 South River Front Parkway Suite 125 South Jordan, Utah (Address of Principal Executive Offices) (Zip Code) Registrant’s telephone number, including area code:(801) 816-2520 (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 []Soliciting material pursuant to Rule 14a-12 under the Exchange Act []Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act []Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act Item 1.01 Entry into a Material Definitive Agreement On July 16, 2010, Alto Group Holdings, Inc. (the “Company”) entered into a Securities Purchase Agreement (“SPA”) in connection with the issuance of a convertible promissory note (“Note”) in the aggregate principal amount of $50,000.The Note matures eight months from the date of issuance and bears interest at the rate of 8% per annum.The Note may be prepaid prior to its maturity following 120 days at a 50% premium to the principal amount.The Note, together with all interest as accrued, is convertible into shares of the Company’s common stock at a conversion price equal to the lower of (i) 58% of the average of the lowest three bid prices of the Company’s shares of common stock traded on the OTC Bulletin Board during the ten-day period prior to the date of conversion; or (ii) the effective price at which the Company issues shares of its equity securities (or securities convertible thereunto) in respect of certain financing, merger and acquisition, and other commercial transactions.The SPA and the Note contain representations, warranties, conditions, restrictions, and covenants of the Company that are customary in such transactions with smaller companies. Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. On July 16, 2010, the Company executed the SPA and issued the Note as described in Item 1.01 above.The Note may be accelerated by the holder in the event of default and the rate of interest on the Note will increase to 22% per annum, retroactive to the date of issuance.In addition, the amount due and payable under the Note (and, consequently, the number of shares of common stock convertible thereunto) may be increased to 150% of the principal amount of the Note, plus default interest as accrued thereon, in the event of default.The Note is a direct financial obligation of the Company and is considered a current liability of the Company for accounting purposes. Item 3.02 Unregistered Sales of Equity Securities. On July 16, 2010, the Company issued a Note convertible into equity securities of the Company as described in Item 1.01 above.The purchaser of the Note was an “accredited investor” as such term is defined by rules promulgated by the Securities and Exchange Commission (“SEC”).No solicitation was made and no underwriting discounts were given or paid in connection with this transaction.The Company believes that the issuance of shares pursuant to the Acquisition was exempt from registration with the SEC pursuant to Section 4(2) of the Securities Act of 1933. Item 9.01Financial Statements and Exhibits. (d) Exhibits. 10.1Securities Purchase Agreement dated July 16, 2010 between Alto Group Holdings, Inc. and Asher Enterprises, Inc. 10.2Convertible Promissory Note issued by Alto Group Holdings, 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. Alto Group Holdings, Inc. Date: July 21, 2010 By: /s/Mark Klok Mark Klok Chief Executive Officer

  Exhibit 10.4    Inspired Entertainment   Short-Term Incentive Bonus Plan   (adopted as of 27 March, 2019)   I.PURPOSE   The Inspired Entertainment fiscal year 2019 Short-Term Incentive Bonus Plan (the “Plan”) is intended to provide incentives to certain employees of Inspired Entertainment, Inc., its subsidiaries and its participating affiliates (collectively, the “Company”) to contribute to the success of the Company in its fiscal year commencing January 1 2019 and ending December 31 2019 (“2019”). The Plan offers eligible participants an opportunity to earn compensation in addition to their salaries, based upon the performance of the Company and the satisfaction of individual performance targets determined for each participant.   II.PLAN ADMINISTRATION   The Plan has been approved by the Compensation Committee of the Company’s Board of Directors (the “Committee”), and the Committee is responsible for administering the Plan. The Committee may delegate, on such terms and conditions as it may provide, certain authority and powers with respect to administration of the Plan to one or more directors serving on the Committee and/or to one or more officers or other personnel of the Company (including with respect to the participation of, and awards to, participants who are not executive officers of the Company). Subject to the terms of the Plan, the Committee will receive recommendations for 2019 from the Company’s principal executive officer (the Executive Chairman of the Company or from two other members of the Office of the Executive Chairman) with respect to the operation and management of the Plan for the year including recommendations for the selection of eligible participants, bonus opportunity levels, performance criteria, and the amount and timing of any bonus payments.   III.ELIGIBILITY   The executives and other employees eligible for participation in the Plan will be determined on an annual basis (being admitted one year, isn’t a guarantee of participation in a later year). Duly determined participants under the Plan are also referred to herein as “Covered Employees”.   Any bonus payment made under the Plan shall be purely discretionary and shall not form part of his or her contractual remuneration.   An individual whose employment is terminated for any reason, or who is under notice of termination (whether given by the individual or the Company) in both cases prior to the date on which bonus would otherwise be paid will not be eligible to receive any payment under the Plan.   If a person is hired for a position with the Company during 2019 and the position is within the category recommended to be eligible to receive a bonus under the Plan, that person may be eligible to receive a prorated portion of the annual bonus, as recommended by the Company’s principal executive officer and/or determined by the Compensation Committee, depending on the person’s particular position subject to consideration as further described above.   1   IV.BONUS POTENTIAL   The bonus potential for Covered Employees shall be determined for 2019 including applicable threshold, target and maximum bonus potential for the year. Bonus potential for 2019 will be based on a percentage of the Covered Employee’s base salary as of the beginning or end of the year, the prorated amount for the year or a fixed dollar amount, as determined by the Committee. Award opportunity levels corresponding to threshold, target and maximum levels of performance may vary by participant. The name and bonus potential of each participant will be set forth in a schedule approved by the Committee for 2019 (the “Bonus Potential Schedule”). The bonus potential set forth in the Bonus Potential Schedule may, at any time prior to payment of the bonus, be adjusted to reflect changes in the list of eligible participants or to the bonus potential for participants (upward or downward), in the absolute discretion of the Committee as it deems appropriate, to reflect, without limitation, changes to a person’s position, title, or responsibilities, or, as appropriate, to reflect a transformative transaction (as determined by the Board or the Committee).   V.PLAN COMPONENTS   The performance targets applicable for 2019 have been approved and include Company performance targets and individual performance targets. The weighting of the Plan components will also be established for this financial year.   A.Company Performance Targets   Bonuses are contingent upon the Company achieving specific Company performance as determined by the Committee with respect to each financial year (the “Company Performance Targets”). The following are examples of criteria that could be used to set Company Performance Targets and are not an exclusive list: (i) revenue; (ii) sales; (iii) profit (net profit, gross profit, operating profit, economic profit, profit margins or other corporate profit measures); (iv) earnings (which may include any calculation of earnings, including but not limited to earnings taxes, depreciation and amortization and net earnings); (v) net income (before or after taxes, operating income or other income measures); (vi) cash (cash flow, cash generation or other cash measures); and (vii) stock price or performance; and (viii) total stockholder return. As determined by the Committee, the Company Performance Targets may be based on GAAP or non-GAAP results and any actual results may be adjusted by the Committee for one-time items or unbudgeted or unexpected items when determining whether the performance goals have been met. In certain cases, the Office of the Executive Chairman may recommend to the Compensation Committee that an element of Bonus is a divisional target as opposed to Company wide.   2    The Office of the Executive Chairman recommended for approval Company performance targets for 2019 and The Compensation Committee has reviewed, approved and thereby determined such Company performance targets for 2019.   B.Individual Performance Targets   Even if the Company has fully achieved the Company Performance Targets, an individual participant’s bonus potential will be subject to an assessment of the individual’s achievement of individual performance targets. The following are examples of criteria that could be used to set individual performance targets and are not an exclusive list: (i) budget management; (ii) cost of service; (iii) quality and service levels; (iv) product line achievements; (v) leadership/team participation and support and (vi) adherence to and compliance with Company values and behaviors.   The Committee may, in its sole discretion and at any time, reduce or eliminate a Covered Employee’s award if it determines that such reduction or elimination is appropriate.   VI.TRANSFER/PROMOTION/DEMOTION   If a participant is transferred to a new role during 2019, the bonus payment for 2019 will be calculated based on the base earnings the participant received during the relevant portions of 2019 in each role at the applicable target percentage(s) for each role unless determined otherwise by the Committee.   If a participant becomes ineligible for the Plan due to a transfer or demotion, the participant may be eligible to receive a prorated bonus based on the period of participation in the Plan as determined by the Committee. Any such prorated bonus would be paid at the same time as other bonus payments under the Plan.   VII.PAYOUT AND TAXATION   Bonus payments that are approved by the Committee for 2019 shall be made as soon as administratively practicable after the completion of the Company’s audited financial statements for 2019 subject to IX below. Further, if the Committee determines that payment of bonuses would jeopardize the ability of the Company to continue as a going concern or meet its banking covenants, bonuses may be reduced, eliminated or delayed.   Payroll taxes will be withheld from bonus payments as required by law. Bonus payments that participants receive are includable as income in the year in which they are paid.   VIII.INTEGRATION WITH BENEFIT PROGRAMS   Any bonus payment that a participant receives is not intended to be considered compensation for purposes of life assurance, 401(k) or any other pension scheme, disability, holiday pay or any other benefit plan unless specified by the applicable plan document.   3   IX.CONDITIONS FOR RECEIVING PAYMENT   eligible to receive a bonus payment (e.g., a participant on garden leave on the date of payment will not be eligible for a bonus). However, the Company retains the authority in its absolute discretion to make exceptions to the foregoing policy in unusual or meritorious cases including, but not limited to, approving a prorated bonus in the event of an employee’s death, disability, call to active military service, or retirement with the written consent of the Company.   X.CLAWBACK   By accepting a bonus payment under the Plan, each participant agrees that the Company may recover some or all of the amounts paid with respect to such bonus payment, or recoup some or all of the value thereof via offset from other amounts owed to the employee by the Company or an affiliate, at any time in the three year fiscal years following payment hereunder, if and to the extent that the Committee concludes that (i) U.S. federal or state law, the laws of any other jurisdiction in which the participant has been employed by the Company during the fiscal year, or the listing requirements of the exchange on which the Company’s stock is listed for trading so require, (ii) the performance criteria required for the bonus payment were not met, or not met to the extent necessary to support the amount of the bonus payment that was paid, or (iii) as required by Section 304 of the U.S. Sarbanes-Oxley Act of 2002, Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise after a restatement of the Company’s financial results as reported to the U.S. Securities and Exchange Commission. Participants are deemed to have agreed to promptly comply with any Company demand for recovery or recoupment by accepting any payment hereunder.   XI.LIMITATIONS AND/OR ADJUSTMENTS   The Company reserves the right to review, amend, suspend, withdraw and/or terminate the Plan, the incentive calculation formulas, performance targets and all other aspects of the Plan at any time and in its sole and absolute discretion and without prior notice.   An employee’s participation in the Plan shall not be construed as a contractual right or form part of his or her contractual remuneration under an employment contract nor shall it be construed as a promise of continuing employment between the Company and the employee. Any bonus payment made in respect of 2019 are not indicative of any payments that may be made in subsequent fiscal years. Employment with the Company is terminable at will subject to the terms of any written services or employment agreement between the Company and the employee and applicable laws. Neither an employee’s employment with the Company, nor an employee’s employment within any particular category of employees, shall entitle the employee to either participate in the Plan or to be eligible to receive any bonus pursuant thereto. All determinations of eligibility shall be made by the Compensation Committee in its absolute discretion and may be revised or adjusted in accordance with the Plan.   4

Title: Can police follow suicidal person via phone? Question:I have some serious underlying mental health issue, I have never threatened to kill myself before I'm public but last week things got really out of control and I went up to the bridge but was gonna end and cops stopped me. I'm doing much better but everywhere i go I see police cruiser driving by. Is it possible that they are following me by using my phone as tracking device? Seeing them everywhere make me even more anxious and paranoid. This could cause me to lose myself and end it. I'm in Toronto, Ontario, Canada, I think the law is similar to US but I would like to hear anything you have. Thank you all Answer #1: **Extremely** unlikely they are tracking you. You are probably just more aware of it after last week. Have you spoken to anyone yet? Professional or friend?Answer #2: Yes, that is something that is technologically possible. It is even done, for very short periods of time, during a crisis (like if you're both missing and suicidal or otherwise in danger. But it's not happening for days at a time.

INTELLECTUAL PROPERTY SECURITY AGREEMENT            Intellectual Property Security Agreement (this "Agreement" dated as of July 29, 2005, by and among Skylynx Communications, Inc., a Delaware corporation (the "Company"), and the secured parties signatory hereto and their respective endorsees, transferees and assigns (collectively, the "Secured Party").           WHEREAS, pursuant to a Securities Purchase Agreement, dated the date hereof, between Company and the Secured Party (the "Purchase Agreement"), Company has agreed to issue to the Secured Party and the Secured Party has agreed to purchase from Company certain of Company's 8% Callable Secured Convertible Notes, due three years from the date of issue (the "Notes"), which are convertible into shares of Company's Common Stock, par value $.0001 per share (the "Common Stock"). In connection therewith, Company shall issue the Secured Party certain Common Stock purchase warrants (the "Warrants"); and           WHEREAS, in order to induce the Secured Party to purchase the Notes, Company has agreed to execute and deliver to the Secured Party this Agreement for the benefit of the Secured Party and to grant to it a first priority security interest in certain Intellectual Property (defined below) of Company to secure the prompt payment, performance and discharge in full of all of Company's obligations under the Notes and exercise and discharge in full of Company's obligations under the Warrants; and           NOW, THEREFORE, in consideration of the agreements herein contained           1.         Defined Terms. Unless otherwise defined herein, terms which are defined in the Purchase Agreement and used herein are so used as so defined; and the following terms shall have the following meanings:                               "Software Intellectual Property" shall mean:                               (a)         all software programs (including all source code, object code and all related applications and data files), whether now owned, upgraded, enhanced, licensed or leased or hereafter acquired by the Company, above;                               (b)         all computers and electronic data processing hardware and firmware associated therewith;                               (c)         all documentation (including flow charts, logic diagrams, manuals, guides and specifications) with respect to such software, hardware and firmware described in the preceding clauses (a) and (b); and                               (d)         all rights with respect to all of the foregoing, including, without limitation, any and all upgrades, modifications, copyrights, licenses, options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications and substitutions, replacements, additions, or model conversions of any of the foregoing. registrations and applications for registration, issued or filed, including any reissues, extensions or renewals thereof, by or with the United States Copyright Office or any similar office or agency of the United States, any state thereof, or any other country or political subdivision thereof, or otherwise, including, all rights in and to the material constituting the subject matter thereof, including, without limitation, any referred to in Schedule B hereto, and (b) any rights in any material which is copyrightable or which is protected by common law, United States copyright laws or similar laws or any law of any State, including, without limitation, any thereof referred to in Schedule B hereto.                               "Copyright License" shall mean any agreement, written or oral, providing for a grant by the Company of any right in any Copyright, including, without limitation, any thereof referred to in Schedule B hereto.                               "Intellectual Property" shall means, collectively, the Software Intellectual Property, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses and Trade Secrets.                               "Obligations" means all of the Company's obligations under this Agreement and the Notes, in each case, whether now or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later decreased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from the Secured Party as a preference, fraudulent transfer or otherwise as such obligations may be amended, supplemented, converted, extended or modified from time to time.                               "Patents" shall mean (a) all letters patent of the United States or any other country or any political subdivision thereof, and all reissues and extensions thereof, including, without limitation, any thereof referred to in Schedule B hereto, and (b) all applications for letters patent of the United States and all divisions, continuations and continuations-in-part thereof or any other country or any political subdivision, including, without limitation, any thereof referred to in Schedule B hereto.                               "Patent License" shall mean all agreements, whether written or oral, providing for the grant by the Company of any right to manufacture, use or sell any invention covered by a Patent, including, without                               "Security Agreement" shall mean the a Security Agreement, dated the date hereof between Company and the Secured Party.                               "Trademarks" shall mean (a) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any political subdivision thereof, or otherwise, including, without limitation, any thereof referred to in Schedule B hereto, and (b) all reissues, extensions or renewals thereof.                               "Trademark License" shall mean any agreement, written or oral, providing for the grant by the Company of any right to use any Trademark, including, without limitation, any thereof referred to in Schedule B hereto.                               "Trade Secrets" shall mean common law and statutory trade secrets and all other confidential or proprietary or useful information and all know-how obtained by or used in or contemplated at any time for use in the business of the Company (all of the foregoing being collectively called a "Trade Secret"), whether or not such Trade Secret has been reduced to a writing or other tangible form, including all documents and things embodying, incorporating or referring in any way to such Trade Secret, all Trade Secret licenses, including each Trade Secret license referred to in Schedule B hereto, and including the right to sue for and to enjoin and to collect damages for the actual or threatened misappropriation of any Trade Secret and for the breach or enforcement of any such Trade Secret license.           2.         Grant of Security Interest. In accordance with Section 3(m) of the Security Agreement, to secure the complete and timely payment, performance and discharge in full, as the case may be, of all of the Obligations, the Company hereby, unconditionally and irrevocably, pledges, grants and hypothecates to the Secured Party, a continuing security interest in, a continuing first lien upon, an unqualified right to possession and disposition of and a right of set-off against, in each case to the fullest extent permitted by law, all of the Company's right, title and interest of whatsoever kind and nature in and to the Intellectual Property (the "Security Interest").           3.         Representations and Warranties. The Company hereby represents and warrants, and covenants and agrees with, the Secured Party as follows:                               (a)         The Company has the requisite corporate power and authority to enter into this Agreement and otherwise to carry out its obligations thereunder. The execution, delivery and performance by the Company of this Agreement and the filings contemplated therein have been further action is required by the Company. This Agreement constitutes a legal, valid and binding obligation of the Company enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor's rights generally.                               (b)         The Company represents and warrants that it has no place of business or offices where its respective books of account and records are kept (other than temporarily at the offices of its attorneys or accountants) or places where the Intellectual Property is stored or located, except as set forth on Schedule A attached hereto;                               (c)         The Company is the sole owner of the Intellectual Property (except for non-exclusive licenses granted by the Company in the ordinary course of business), free and clear of any liens, security interests, encumbrances, rights or claims, and is fully authorized to grant the Security Interest in and to pledge the Intellectual Property, except as set forth on Schedule D. There is not on file in any governmental or regulatory authority, agency or recording office an effective financing statement, security agreement, license or transfer or any notice of any of the foregoing (other than those that have been filed in favor of the Secured Party pursuant to this Agreement) covering or affecting any of the Intellectual Property, except as set forth on Schedule D. So long as this Agreement shall be in effect, the Company shall not execute and shall not knowingly permit to be on file in any such office or agency any such financing statement or other document or instrument (except to the extent filed or recorded in favor of the Secured Party pursuant to the terms of this Agreement), except as set forth on Schedule D, provided that the value of the Intellectual Property covered by this Agreement along with the Collateral (as defined in the Security Agreement) is equal to at least 150% of the Obligations.                               (d)         The Company shall at all times maintain its books of account and records relating to the Intellectual Property at its principal place of business and its Intellectual Property at the locations set forth on Schedule A attached hereto and may not relocate such books of account and records unless it delivers to the Secured Party at least 30 days prior to such relocation (i) written notice of such relocation and the new location thereof (which must be within the United States) and (ii) evidence that the necessary documents have been filed and recorded and other steps have been taken to perfect the Security Interest to create in favor of the Secured Party valid, perfected and continuing first priority liens in the Intellectual Property to the extent they can be perfected through such filings.                               (e)         This Agreement creates in favor of the Secured Party a valid security interest in the Intellectual Property securing the payment and performance of the Obligations and, upon making the filings required hereunder, a perfected first priority security interest in such Intellectual Property to the extent that it can be perfected through such filings.                               (f)          Upon request of the Secured Party, the Company shall execute and deliver any and all agreements, instruments, documents, and papers as the Secured Party may request to evidence the Secured Party's security interest in the Intellectual Property and the goodwill and general intangibles of the Company relating thereto or represented thereby, and the Company hereby appoints the Secured Party its attorney-in-fact to execute and file all such writings for the foregoing purposes, all acts of such attorney being hereby ratified and confirmed; such power being coupled with an interest is irrevocable until the Obligations have been fully satisfied and are paid in full.                               (g)         Except as set forth on Schedule D, the execution, delivery and performance of this Agreement does not conflict with or cause a breach or default, or an event that with or without the passage of time or notice, shall constitute a breach or default, under any agreement to which the Company is a party or by which the Company is bound. No consent (including, without limitation, from stock holders or creditors of the Company) is required for the Company to enter into and perform its obligations hereunder.                               (h)         The Company shall at all times maintain the liens and Security Interest provided for hereunder as valid and perfected first priority liens and security interests in the Intellectual Property to the extent they can be perfected by filing in favor of the Secured Party until this Agreement and the Security Interest hereunder shall terminate pursuant to Section 11. The Company hereby agrees to defend the same against any and all persons. The Company shall safeguard and protect all Intellectual Property for the account of the Secured Party. Without limiting the generality of the foregoing, the Company shall pay all fees, taxes and other amounts necessary to maintain the Intellectual Property and the Security Interest hereunder, and the Company shall obtain and furnish to the Secured Party from time to time, upon demand, such releases and/or subordinations of claims and liens which may be required to maintain the priority of the Security Interest hereunder.                               (i)         The Company will not transfer, pledge, hypothecate, encumber, license (except for non-exclusive licenses granted by the Company in the ordinary course of business), sell or otherwise dispose of any of the Intellectual Property without the prior written consent of the Secured Party.                               (j)         The Company shall, within ten (10) days of obtaining knowledge thereof, advise the Secured Party promptly, in sufficient detail, of any substantial change in the Intellectual Property, and of the occurrence of any event which would have a material adverse effect on the value of the Intellectual Property or on the Secured Party's security interest therein.                               (k)         The Company shall permit the Secured Party and its representatives and agents to inspect the Intellectual Property at any time, and to make copies of records pertaining to the Intellectual Property as may be requested by the Secured Party from time to time.                               (l)         The Company will take all steps reasonably necessary to diligently pursue and seek to preserve, enforce and collect any rights, claims, causes of action and accounts receivable in respect of the Intellectual Property.                               (m)         The Company shall promptly notify the Secured Party in sufficient detail upon becoming aware of any attachment, garnishment, execution or other legal process levied against any Intellectual Property and of any other information received by the Company that may materially affect the value of the Intellectual Property, the Security Interest or the rights and remedies of the Secured Party hereunder.                               (n)         All information heretofore, herein or hereafter supplied to the Secured Party by or on behalf of the Company with respect to the Intellectual Property is accurate and complete in all material respects as of the date furnished.                               (o)         Schedule A attached hereto contains a list of all of the subsidiaries of Company.                               (p)         Schedule B attached hereto includes all Licenses, and all Patents and Patent Licenses, if any, owned by the Company in its own name as of the date hereof. Schedule B hereto includes all Trademarks and Trademark Licenses, if any, owned by the Company in its own name as of the date hereof. Schedule B hereto includes all Copyrights and Copyright Licenses, if any, owned by the Company in its own name as of the date hereof. Schedule B hereto includes all Trade Secrets and Trade Secret Licenses, if any, owned by the Company as of the date hereof. To the best of the Company's knowledge, each License, Patent, Trademark, Copyright and Trade Secret is valid, subsisting, unexpired, enforceable and has not been abandoned. Except as set forth in Schedule B, none of such Licenses, Patents, Trademarks, Copyrights and Trade Secrets is the subject of any licensing or franchise agreement. To the best of the Company's knowledge, no holding, decision or judgment has been rendered by any Governmental Body which would limit, cancel or question the validity of any License, Patent, Trademark, Copyright and Trade Secrets . Except as set forth in Schedule B, no action or proceeding is pending (i) seeking to limit, cancel or question the validity of any License, Patent, Trademark, Copyright or Trade Secret, or (ii) which, if adversely determined, would have a material adverse effect on the value of any License, Patent, Trademark, Copyright or Trade Secret. The Company has used and will continue to use for the duration of this Agreement, proper statutory notice in connection with its use of the Patents, Trademarks and Copyrights and consistent standards of quality in products leased or sold under the Patents, Trademarks and Copyrights.                               (q)         With respect to any Intellectual Property:   (i) such Intellectual Property is subsisting and has not been adjudged invalid or unenforceable, in whole or in part;   (ii) such Intellectual Property is valid and enforceable;   (iii) the Company has made all necessary filings and recordations to protect its interest in such Intellectual Property, including, without limitation, recordations of all of its interests in the Patents, Patent Licenses, Trademarks and Trademark Licenses in the United States Patent and Trademark Office and in corresponding offices throughout the world and its claims to the Copyrights and Copyright Licenses in the United States Copyright Office and in corresponding offices throughout the world;   (iv) other than as set forth in Schedule B, the Company is the exclusive owner of the entire and unencumbered right, title and interest in and to such Intellectual Property and no claim has been made that the use of such Intellectual Property infringes on the asserted rights of any third party; and   (v) the Company has performed and will continue to perform all acts and has paid all required fees and taxes to maintain each and every item of Intellectual Property in full force and effect throughout the world, as applicable.                               (r)         Except with respect to any Trademark or Copyright that the Company shall reasonably determine is of negligible economic value to the Company, the Company shall:                                           (i)         maintain each Trademark and Copyright in full force free from any claim of abandonment for non-use, maintain as in the past the quality of products and services offered under such Trademark or Copyright; employ such Trademark or Copyright with the appropriate notice of registration; not adopt or use any mark which is confusingly similar or a colorable imitation of such Trademark or Copyright unless the Secured Party shall obtain a perfected security interest in such mark pursuant to this Agreement; and not (and not permit any licensee or sublicensee thereof to) do any act or knowingly omit to do any act whereby any Trademark or Copyright may become invalidated;                                           (ii)       not, except with respect to any Patent that it shall reasonably determine is of negligible economic value to it, do any act, or omit to do any act, whereby any Patent may become abandoned or dedicated; and                                           (iii)      notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Patent, Trademark or Copyright may become abandoned or dedicated, or of any adverse determination or development (including, without limitation, the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, United States Copyright Office or any court or tribunal in any country) regarding its ownership of any Patent, Trademark or Copyright or its right to register the same or to keep and maintain the same.                               (s)         Whenever the Company, either by itself or through any agent, employee, licensee or designee, shall file an application for the registration of any Patent, Trademark or Copyright with the United States Patent and Trademark Office, United States Copyright Office or any similar office or agency in any other country or any political subdivision thereof or acquire rights to any new Patent, Trademark or Copyright whether or not registered, report such filing to the Secured Party within five business days after the last day of the fiscal quarter in which such filing occurs.                               (t)         The Company shall take all reasonable and necessary steps, including, without limitation, in any proceeding before the United States Patent and Trademark Office, United States Copyright Office or any thereof, to maintain and pursue each application (and to obtain the relevant registration) and to maintain each registration of the Patents, Trademarks and Copyrights, including, without limitation, filing of applications for renewal, affidavits of use and affidavits of incontestability.                               (u)         In the event that any Patent, Trademark or Copyright included in the Intellectual Property is infringed, misappropriated or diluted by a third party, promptly notify the Secured Party after it learns thereof and shall, unless it shall reasonably determine that such Patent, Trademark or Copyright is of negligible economic value to it, which determination it shall promptly report to the Secured Party, promptly sue for infringement, misappropriation or dilution, to seek injunctive relief where appropriate and to recover any and all damages for such infringement, misappropriation or dilution, or take such other actions as it shall reasonably deem appropriate under the circumstances to protect such Patent, Trademark or Copyright. If the Company lacks the financial resources to comply with this Section 3(t), the Company shall so notify the Secured Party and shall cooperate fully with any enforcement action undertaken by the Secured Party on behalf of the Company.           4.         Defaults. The following events shall be "Events of Default":                               (a)         The occurrence of an Event of Default (as defined in the Notes) under the Notes;                               (b)         Any representation or warranty of the Company in this Agreement or in the Security Agreement shall prove to have been incorrect in any material respect when made;                               (c)         The failure by the Company to observe or perform any of its obligations hereunder or in the Security Agreement for ten (10) days after receipt by the Company of notice of such failure from the Secured Party; and                               (d)         Any breach of, or default under, the Warrants.           5         Duty To Hold In Trust. Upon the occurrence of any Event of Default and at any time thereafter, the Company shall, upon receipt by it of any revenue, income or other sums subject to the Security Interest, whether payable pursuant to the Notes or otherwise, or of any check, draft, note, trade acceptance or other instrument evidencing an obligation to pay any such sum, hold the same in trust for the Secured Party and shall forthwith endorse and transfer any such sums or instruments, or both, to the Secured Party for application to the satisfaction of the Obligations.           6.         Rights and Remedies Upon Default. Upon occurrence of any Event of Default and at any time thereafter, the Secured Party shall have the right to exercise all of the remedies conferred hereunder and under the Notes, and the Secured Party shall have all the rights and remedies of a secured party under the UCC and/or any other applicable law (including the Uniform Commercial Code of any jurisdiction in which any Intellectual Property is then located). Without limitation, the Secured Party shall have the following rights and powers:                               (a)         The Secured Party shall have the right to take possession of the Intellectual Property and, for that purpose, enter, with the aid and assistance of any person, any premises where the Intellectual Property, or any part thereof, is or may be placed and remove the same, and the Company shall assemble the Intellectual Property and make it available to the Secured Party at places which the Secured Party shall reasonably select, whether at the Company's premises or elsewhere, and make available to the Secured Party, without rent, all of the Company's respective premises and facilities for the purpose of the Secured Party taking possession of, removing or putting the Intellectual Property in saleable or disposable form.                               (b)         The Secured Party shall have the right to operate the business of the Company using the Intellectual Property and shall have the right to assign, sell, lease or otherwise dispose of and deliver all or any part of the Intellectual Property, at public or private sale or otherwise, either with or without special conditions or stipulations, for cash or on credit or for future delivery, in such parcel or parcels and at such time or times and at such place or places, and upon such terms and conditions as the Secured Party may deem commercially reasonable, all without (except as shall be required by applicable statute and cannot be waived) advertisement or demand upon or notice to the Company or right of redemption of the Company, which are hereby expressly waived. Upon each such sale, lease, assignment or other transfer of Intellectual Property, the Secured Party may, unless prohibited by applicable law which cannot be waived, purchase all or any part of the Intellectual Property being sold, free from and discharged of all trusts, claims, right of redemption and equities of the Company, which are hereby waived and released.           7.         Applications of Proceeds. The proceeds of any such sale, lease or other disposition of the Intellectual Property hereunder shall be applied first, to the expenses of retaking, holding, storing, processing and preparing for sale, selling, and the like (including, without limitation, any taxes, fees and other costs incurred in connection therewith) of the Intellectual Property, to the reasonable attorneys' fees and expenses incurred by the Secured Party in enforcing its rights hereunder and in connection with collecting, storing and disposing of the Intellectual Property, and then to satisfaction of the Obligations, and to the payment of any other amounts required by applicable law, after which the Secured Party shall pay to the Company any surplus proceeds. If, upon the sale, license or other disposition of the Intellectual Property, the proceeds thereof are insufficient to pay all amounts to which the Secured Party is legally entitled, the Company will be liable for the deficiency, together with interest thereon, at the rate of 15% per annum (the "Default Rate"), and the reasonable fees of any attorneys employed by the Secured Party to collect such deficiency. To the extent permitted by applicable law, the Company waives all claims, damages and demands against the Secured Party arising out of the repossession, removal, retention or sale of the Intellectual Property, unless due to the gross negligence or willful misconduct of the Secured Party.           8.         Costs and Expenses.  The Company agrees to pay all out-of-pocket fees, costs and expenses incurred in connection with any filing required hereunder, including without limitation, any financing statements, continuation statements, partial releases and/or termination statements related thereto or any expenses of any searches reasonably required by the Secured Party. The Company shall also pay all other claims and charges which in the reasonable opinion of the Secured Party might prejudice, imperil or otherwise affect the Intellectual Property or the Security Interest therein. The Company will also, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i) the enforcement of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Intellectual Property, or (iii) the exercise or enforcement of any of the rights of the Secured Party under the Notes. Until so paid, any fees payable hereunder shall be added to the principal amount of the Notes and shall bear interest at the Default Rate.           9.         Responsibility for Intellectual Property. The Company assumes all liabilities and responsibility in connection with all Intellectual Property, and the obligations of the Company hereunder or under the Notes and the Warrants shall in no way be affected or diminished by reason of the loss, destruction, damage or theft of any of the Intellectual Property or its unavailability for any reason.           10.        Security Interest Absolute. All rights of the Secured Party and all Obligations of the Company hereunder, shall be absolute and unconditional, irrespective of: (a) any lack of validity or enforceability of this Agreement, the Notes, the Warrants or any agreement entered into in connection with the foregoing, or any portion hereof or thereof; (b) any change in the time, manner or place of payment or performance of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Notes, the Warrants or any other agreement entered into in connection with the foregoing; (c) any exchange, release or nonperfection of any of the Intellectual Property, or any release or amendment or waiver of or consent to departure from any other Intellectual Property for, or any guaranty, or any other security, for all or any of the Obligations; (d) any action by the Secured Party to obtain, adjust, settle and cancel in its sole discretion any insurance claims or matters made or arising in connection with the Intellectual Property; or (e) any other circumstance which might otherwise constitute any legal or equitable defense available to the Company, or a discharge of all or any part of the Security Interest granted hereby. Until the Obligations shall have been paid and performed in full, the rights of the Secured Party shall continue even if the Obligations are barred for any reason, including, without limitation, the running of the statute of limitations or bankruptcy. The Company expressly waives presentment, protest, notice of protest, demand, notice of nonpayment and demand for performance. In the event that at any time any transfer of any Intellectual Property or any payment received by the Secured Party hereunder shall be deemed by final order of a court of competent jurisdiction to have been a voidable preference or fraudulent conveyance under the bankruptcy or insolvency laws of the United States, or shall be deemed to be otherwise due to any party other than the Secured Party, then, in any such event, the Company's obligations hereunder shall survive cancellation of this Agreement, and shall not be discharged or satisfied by any prior payment thereof and/or cancellation of this Agreement, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions hereof. The Company waives all right to require the Secured Party to proceed against any other person or to apply any Intellectual Property which the Secured Party may hold at any time, or to marshal assets, or to pursue any other remedy. The Company waives any defense arising by reason of the application of the statute of limitations to any obligation secured hereby.           11.        Term of Agreement. This Agreement and the Security Interest shall terminate on the date on which all payments under the Notes have been made in full and all other Obligations have been paid or discharged. Upon such termination, the Secured Party, at the request and at the expense of the Company, will join in executing any termination statement with respect to any financing statement executed and filed pursuant to this Agreement.           12.        Power of Attorney; Further Assurances.                               (a)         The Company authorizes the Secured Party, and does hereby make, constitute and appoint it, and its respective officers, agents, successors or assigns with full power of substitution, as the Company's true and lawful attorney-in-fact, with power, in its own name or in the name of the Company, to, after the occurrence and during the continuance of an Event of Default, (i) endorse any notes, checks, drafts, money orders, or other instruments of payment (including payments payable under or in respect of any policy of insurance) in respect of the Intellectual Property that may come into possession of the Secured Party; (ii) to sign and endorse any UCC financing statement or any invoice, freight or express bill, bill of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications and notices in connection with accounts, and other documents relating to the Intellectual Property; (iii) to pay or discharge taxes, liens, security interests or other encumbrances at any time levied or placed on or threatened against the Intellectual Property; (iv) to demand, collect, receipt for, compromise, settle and sue for monies due in respect of the Intellectual Property; and (v) generally, to do, at the option of the Secured Party, and at the Company's expense, at any time, or from time to time, all acts and things which the Secured Party deems necessary to protect, preserve and realize upon the Intellectual Property and the Security Interest granted therein in order to effect the intent of this Agreement, the Notes and the Warrants, all as fully and effectually as the Company might or could do; and the Company hereby ratifies all that said attorney shall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with an interest and shall be irrevocable for the term of this Agreement and thereafter as long as any of the Obligations shall be outstanding.                               (b)         On a continuing basis, the Company will make, execute, acknowledge, deliver, file and record, as the case may be, in the proper filing and recording places in any jurisdiction, including, without limitation, the jurisdictions indicated on Schedule C, attached hereto, all such instruments, and take all such action as may reasonably be deemed necessary or advisable, or as reasonably requested by the Secured Party, to perfect the Security Interest granted hereunder and otherwise to carry out the intent and purposes of this Agreement, or for assuring and confirming to the Secured Party the grant or perfection of a security interest in all the Intellectual Property.                               (c)         The Company hereby irrevocably appoints the Secured Party as the Company's attorney-in-fact, with full authority in the place and stead of the Company and in the name of the Company, from time to time in the Secured Party's discretion, to take any action and to execute any instrument which the Secured Party may deem necessary or advisable to accomplish the purposes of this Agreement, including the filing, in its sole discretion, of one or more financing or continuation statements and amendments thereto, relative to any of the Intellectual Property without the signature of the Company where permitted by law.           13.        Notices. All notices, requests, demands and other communications hereunder shall be in writing, with copies to all the other parties hereto, and shall be deemed to have been duly given when (i) if delivered by hand, upon receipt, (ii) if sent by facsimile, upon receipt of proof of sending thereof, (iii) if sent by nationally recognized overnight delivery service (receipt requested), the next business day or (iv) if mailed by first-class registered or certified mail, return receipt requested, postage prepaid, four days after posting in the U.S. mails, in each case if delivered to the following addresses: Skylynx Communications, Inc.   500 John Ringling Boulevard   Sarasota, FL 34236     Telephone:  (941) 388-2882   Facsimile:  (941)     Clifford L. Newman, P.C.   1507 Pine Street   Boulder, Colorado 80302   Attention:   Cliff Neuman, Esq.   Telephone:   Facsimile:     If to the Secured Party: AJW Partners, LLC   AJW Offshore, Ltd.   AJW Qualified Partners, LLC   New Millennium Capital Partners II, LLC   1044 Northern Boulevard   Suite 302   Roslyn, New York 11576   Attention: Corey Ribotsky   Facsimile: 516-739-7115     Ballard Spahr Andrews & Ingersoll, LLP   1735 Market Street, 51st Floor   Philadelphia, Pennsylvania 19103   Attention: Gerald J. Guarcini, Esq.   Facsimile: 215-864-8999           14.        Other Security. To the extent that the Obligations are now or hereafter secured by property other than the Intellectual Property or by the guarantee, endorsement or property of any other person, firm, corporation or other entity, then the Secured Party shall have the right, in its sole discretion, to pursue, relinquish, subordinate, modify or take any other action with respect thereto, without in any way modifying or affecting any of the Secured Party's rights and remedies hereunder.           14.        Miscellaneous.                        (a)         No course of dealing between the Company and the Secured Party, nor any failure to exercise, nor any delay in exercising, on the part of the Secured Party, any right, power or privilege hereunder or under the Notes shall operate as a waiver thereof; nor shall any single or partial privilege.                        (b)         All of the rights and remedies of the Secured Party with respect to the Intellectual Property, whether established hereby or by the Notes or by any other agreements, instruments or documents or by law shall be cumulative and may be exercised singly or concurrently.                        (c)         This Agreement and the Security Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and is intended to supersede all prior negotiations, understandings and agreements with respect thereto. Except as specifically set forth in this Agreement, no provision of this Agreement may be modified or amended except by a written agreement specifically referring to this Agreement and signed by the parties hereto.                        (d)         In the event that any provision of this Agreement is held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, unless such provision is narrowed by judicial construction, this Agreement shall, as to such jurisdiction, be construed as if such invalid, prohibited or unenforceable provision had been more narrowly drawn so as not to be invalid, prohibited or unenforceable. If, notwithstanding the foregoing, any provision of this Agreement is held to be invalid, prohibited or unenforceable in any jurisdiction, such provision, as to such jurisdiction, shall be ineffective to the extent of such invalidity, prohibition or unenforceability without invalidating the remaining portion of such provision or the other provisions of this Agreement and without affecting the validity or enforceability of such provision or the other provisions of this Agreement in any other jurisdiction.                        (e)         No waiver of any breach or default or any right under this Agreement shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default or right, whether of the same or similar nature or otherwise.                        (f)         This Agreement shall be binding upon and inure to the benefit of each party hereto and its successors and assigns.                        (g)         Each party shall take such further action and execute and deliver such further documents as may be necessary or appropriate in order to carry out the provisions and purposes of this Agreement.                        (h)         This Agreement shall be construed in accordance with the laws of the State of New York, except to the extent the validity, perfection or enforcement of a security interest hereunder in respect of any particular Intellectual Property which are governed by a jurisdiction other than the State of New York in which case such law shall govern. Each of the parties hereto irrevocably submit to the exclusive jurisdiction of any New York State or United States Federal court sitting in Manhattan county over any action or proceeding arising out of or relating to this Agreement, and the parties hereto hereby irrevocably agree that all claims in respect of such Federal court. The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The parties hereto further waive any objection to venue in the State of New York and any objection to an action or proceeding in the State of New York on the basis of forum non conveniens.                        (i)         EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY HAS KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS AND SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF A LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.                        (j)         This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Agreement. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were the original thereof.           IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the day and year first above written.   SKYLYNX COMMUNICATIONS, INC.   By: /s/ Gary L. Brown                    Gary L. Brown         AJW PARTNERS, LLC   By: SMS Group, LLC   By: /s/ Corey S. Ribotsky                  Corey S. Ribotsky   Manager       AJW OFFSHORE, LTD.   By: First Street Manager II, LLC     Corey S. Ribotsky   Manager       AJW QUALIFIED PARTNERS, LLC   By: AJW Manager, LLC             Corey S. Ribotsky   Manager       NEW MILLENNIUM CAPITAL PARTNERS II, LLC       Corey S. Ribotsky   Manager SCHEDULE A Principal Place of Business of the Company: Locations Where Intellectual Property is Located or Stored:   List of Subsidiaries of the Company: SCHEDULE B A.       Licenses, Patents and Patent Licenses Patent Application or Registration No. Country Registration or Filing Date   B.        Trademarks and Trademark Licenses Trademark Country Registration or Filing Date   C.        Copyrights and Copyright Licenses   Name Country Registration or Filing Date   D.        Trade Secrets and Trade Secret Licenses Name Country Registration or Filing Date   SCHEDULE C Jurisdictions :  

Name: Commission Regulation (EC) No 1629/2003 of 17 September 2003 on the issue of import licences for rice originating in the ACP States and the overseas countries and territories against applications submitted in the first five working days of September 2003 pursuant to Regulation (EC) No 638/2003 Type: Regulation Subject Matter: executive power and public service; international trade; economic geography; tariff policy; plant product Date Published: nan Avis juridique important|32003R1629Commission Regulation (EC) No 1629/2003 of 17 September 2003 on the issue of import licences for rice originating in the ACP States and the overseas countries and territories against applications submitted in the first five working days of September 2003 pursuant to Regulation (EC) No 638/2003 Official Journal L 232 , 18/09/2003 P. 0050 - 0051Commission Regulation (EC) No 1629/2003of 17 September 2003on the issue of import licences for rice originating in the ACP States and the overseas countries and territories against applications submitted in the first five working days of September 2003 pursuant to Regulation (EC) No 638/2003THE COMMISSION OF THE EUROPEAN COMMUNITIES,Having regard to the Treaty establishing the European Community,Having regard to Council Decision (EC) No 2286/2002 of 10 December 2002 on the arrangements applicable to agricultural products and goods resulting from the processing of agricultural products originating in the African, Caribbean and Pacific States (ACP States) and repealing Regulation (EC) No 1706/98(1),Having regard to Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (Overseas Association Decision)(2),Having regard to Commission Regulation (EC) No 638/2003 of 9 April 2003 laying down detailed rules for applying Council Regulation (EC) No 2286/2002 and Council Decision 2001/822/EC as regards the arrangements applicable to imports of rice originating in the African, Caribbean and Pacific States (ACP States) and the overseas countries and territories (OCT)(3), and in particular Article 17(2) thereof,Whereas:Examination of the quantities for which applications have been submitted shows that licences for the September 2003 tranche should be issued for the quantities applied for reduced, where appropriate, by the percentages not covered and fixing the quantities carried over to the subsequent tranche,HAS ADOPTED THIS REGULATION:Article 11. Import licences for rice against applications submitted during the first five working days of September 2003 pursuant to Regulation (EC) No 638/2003 and notified to the Commission shall be issued for the quantities applied for reduced, where appropriate, by the percentages set out in the Annex hereto.2. The available quantities carried over to the subsequent tranche are set out in the Annex hereto.Article 2This Regulation shall enter into force on 18 September 2003.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 17 September 2003.For the CommissionJ. M. Silva Rodrà ­guezAgriculture Director-General(1) OJ L 348, 21.12.2002, p. 5.(2) OJ L 314, 30.11.2001, p. 1.(3) OJ L 93, 10.4.2003, p. 3.ANNEXReduction percentages to be applied to quantities applied for under the tranche for September 2003 and quantities carried over to the following tranche>TABLE>>TABLE>

Exhibit 10.4 CORPORATE GUARANTY This Corporate Guaranty (“Guaranty”) is being delivered by the undersigned in connection with that certain Asset Purchase Agreement (the “Agreement”), dated as of January 6th, 2011, between RHA Tishomingo, LLC, an Oklahoma limited liability company (“Seller”), and Mercy Tishomingo Hospital Corporation, an Oklahoma not for profit corporation (“Buyer”). For good and valuable undersigned guarantor does hereby absolutely and unconditionally guaranty to Buyer, the full, faithful and timely performance and satisfaction of all of Seller’s obligations set forth in Section 12 of the Agreement. This Guaranty by the undersigned is unconditional and Buyer need not exhaust its remedies against, or seek relief or satisfaction from Seller prior to exercising such remedies or seeking such relief or satisfaction from the undersigned. IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of January 6, 2011.             First Physicians Capital Group, Inc.       By:   /s/ David Hirschhorn         Name:   David Hirschhorn        Title:   CEO          Exhibit 99.4 CORPORATE GUARANTY as of January      , 2011, between RHA Tishomingo, LLC, an Oklahoma limited      , 2011.                     By:           Name:           Title:            

Name: Council Regulation (EEC) No 3098/82 of 8 November 1982 opening, allocating and providing for the administration of a Community tariff quota for silver hake (Merluccius bilinearis) falling within subheading ex 03.01 B I t) of the Common Customs Tariff (1983) Type: Regulation Date Published: nan 27 . 11 . 82 Official Journal of the European Communities No L 333 /5 COUNCIL REGULATION (EEC) No 3098/82 of 8 November 1982 opening, allocating and providing for the administration of a Community tariff quota for silver hake (Merluccius bilinearis) falling within subheading ex 03.01 Bit) of the Common Customs Tariff ( 1983 ) THE COUNCIL OF THE EUROPEAN COMMUNITIES, estimates to be made as to the import needs of each of them from third countries for the quota period envisaged : Benelux 0 ­ 77 Denmark 23 ­ 28 Germany 42 · 20 Greece 0 · ¢ 01 France 14 – 81 Ireland 0 · ¢ 38 Italy 0 · ¢ 69 United Kingdom 17 ¢ 86 Having regard to the Treaty establishing the European Economic Community, and in particular Article 1 13 thereof, Having regard to the proposal from the Commission, Whereas , under Article 64 of the Act of Accession of 1979 , Greece is required to apply in full the Common tonnes of silver hake (Merluccius bilinearis) falling within subheading ex 03.01 Bit) of the Common Customs Tariff; whereas the tariff quota concerned should be opened on 1 January 1983 and allocated between the Member States ; Whereas, under Article 64 of the Act of Accession of 1979 , Greece is required to apply in full the Common Customs Tariff duty in respect of the product in question as from 1 January 1981 ; whereas , therefore , as from that date , it is necessary to cover, in favour of the tariff quotas in question , the requirements of that Member State during the quota period ; Whereas equal and continuous access to the quota should be ensured for all Community importers and the rate of levy for the tariff quota should be applied consistently to all imports until the quota is used up ; whereas , in the light of the principles outlined above, a Community tariff arrangement based on an allocation between the Member States would seem to preserve the Community nature of the quota ; whereas , to represent as closely as possible the actual development of the market in the said goods , the allocation should follow proportionately the requirements of the Member States calculated both from statistics of imports from third countries during a representative reference period and according to the economic outlook for the tariff year in question ; Whereas , since the fish concerned are not separately specified in the statistical nomenclatures of the Member States , the available import figures provided by them cannot be regarded as sufficiently exact or representative for use as a basis for the allocation referred to above ; whereas the incomplete figures available together with the estimates made by the Member States allow the following percentage Whereas , to take account of the possible import trends for these fish , the quota volume should be divided into two instalments , the first being allocated between the Member States and the second held as a reserve to cover any subsequent requirements of Member States which have used up their initial share ; Whereas , to give importers some degree of certainty, the first instalment of the tariff quota should be fixed at a high level , which in this case could be 65 ¢ 5 % of the amount of the quota ; Whereas initial shares may be used up at different rates ; whereas , to avoid disruption of supplies on this account, it should be provided that any Member State which has almost used up its initial share should draw an additional share from the reserve ; whereas each time its additional share is almost used up a Member State should draw a further share and so on as many times as the reserve allows ; whereas the initial and additional shares should be valid until the end of the quota period ; whereas this form of administration requires close collaboration between the Member States and the Commission, and the Commission must be in a position to keep account of the extent to which the quotas have been used up and to inform the Member States accordingly; Whereas , if at a given date in the quota period a considerable quantity of a Member State's initial share remains unused it is essential that such State should return a significant proportion thereof to the reserve, in order to prevent a part of the Community tariff quota from remaining unused in one Member State while it could be used in others ; Whereas , since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly No L 333/6 Official Journal of the European Communities 27 . 11 . 82 represented by the Benelux Economic Union, any measure concerning the administration of the shares allocated to that economic union may be carried out by any one of its members, 3 . If a Member State, after exhausting its second share , has used 90 % or more of the third share drawn by it, that Member State shall , in the manner and to the extent provided in paragraph 1 , draw a fourth share equal to the third. This process shall apply until the reserve is used up . 4 . By way of derogation from paragraphs 1 , 2 and 3 , a Member State may draw shares lower than those specified in those paragraphs if there are grounds for believing that those specified may not be used in full . Any Member State applying this paragraph shall inform the Commission of its grounds for so doing . HAS ADOPTED THIS REGULATION : Article 1 1 . From 1 January to 31 December 1983, a Community tariff quota of 2 000 tonnes shall be opened within the Community for silver hake (Merluccius bilinearis) falling within subheading ex 03.01 B 1 1) of the Common Customs Tariff. 2 . The Common Customs Tariff duty shall be suspended at the level of 8 % within this tariff quota. Article 4 Additional shares drawn pursuant to Article 3 shall be valid until 31 December 1983 . Article 2 Article 51 . The Community tariff quota referred to in Article 1 shall be divided into two instalments . 2 . A first instalment of 1 310 tonnes shall be allocated among the Member States ; the shares , which subject to Article 5 shall be valid from 1 January to 31 December 1983 , shall be as follows : Member States shall , not later than 1 October 1983 , return to the reserve the unused portion of their initial share which, on 15 September 1983 , is in excess of 20 % of the initial volume. They may return a greater portion if there are grounds for believing that it may not be used in full . Member States shall , not later than 1 October 1983 , notify the Commission of the total quantities of the product in question imported up to and including 15 September 1983 and charged against the Community quota and of any portion of their initial shares returned to the reserve. (tonnes) Benelux 10 Denmark 305 Germany 552 Greece 1 France 194 Ireland 5 Italy 9 United Kingdom 234 Article 6 3 . The second instalment of 690 tonnes shall constitute the reserve . Article 3 The Commission shall keep an account of the shares opened by the Member States pursuant to Articles 2 and 3 and shall , as soon as the information reaches it, inform each State of the extent to which the reserve has been used up . It shall , not later than 5 October 1983 , inform the Member States of the amount still in reserve, following any return of shares pursuant to Article 5 . It shall ensure that the drawing which exhausts the reserve does not exceed the balance available , and to this end shall notify the amount of that balance to the Member State making the last drawing. 1 . If a Member State has used 90 % or more of its initial share as fixed in Article 2 (2), or of that share minus any portion returned to the reserve pursuant to Article 5 , it shall forthwith , by notifying the Commission, draw a second share, to the extent that the reserve so permits , equal to 10 °/o of its initial share, rounded up as necessary to the next whole number. 2 . If a Member State, after exhausting its initial share, has used 90 % or more of the second share drawn by it, that Member State shall forthwith, in the manner and to the extent provided in paragraph 1 , draw a third share equal to 5 °/o of its initial share, rounded up as necessary to the next whole number. Article 7 1 . The Member States shall take all appropriate measures to ensure that additional shares drawn pursuant to Article 3 are opened in such a way that 27 . 1 . 82 Official Journal of the European Communities No L 333/7 Article 8 At the request of the Commission, the Member States shall inform it of imports actually charged against their shares . Article 9 importations may be charged without interruption against their accumulated shares of the Community quota. 2 . The Member States shall ensure that importers of the product in question, established in their territory, have free access to the shares allocated to them . 3 . The Member States shall charge imports of the product in question against their shares as and when the product is entered with the customs authorities for free circulation . 4 . The extent to which a Member State has used up its share shall be determined on the basis of the imports charged in accordance with paragraph 3 . The Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with. Article 10 This Regulation shall enter into force on 1 January 1983 . This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels , 8 November 1982 . For the Council The President H. CHRISTOPHERSEN

Name: COMMISSION REGULATION (EEC) No 1508/93 of 18 June 1993 re-establishing the levying of customs duties on products of categories 5, 26 and 59 (order Nos 40.0050, 40.0260 and 40.0590), originating in India, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3832/90 apply Type: Regulation Subject Matter: tariff policy; leather and textile industries; Asia and Oceania Date Published: nan 22. 6. 93 Official Journal of the European Communities No L 150/5 COMMISSION REGULATION (EEC) No 1508/93 of 18 June 1993 re-establishing the levying of customs duties on products of categories 5 , 26 and 59 (order Nos 40.0050, 40.0260 and 40.0590), originating in India, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3832/90 apply THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 3832/90 of 20 December 1990 applying generalized tariff pref ­ erences for 1991 in respect of textile products originating in developing countries ('), extended for 1993 by Council (EEC) No 3917/92 (2), and in particular Article 12 thereof, Whereas Article 10 of Regulation (EEC) No 3832/90 provides that preferential tariff treatment shall be accorded for 1993 for each category of products subjected in Annexes I and II thereto to individual ceilings, within the limits of the quantities specified in column 8 of Annex I and column 7 of Annex II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes ; Whereas Article 11 of the abovementioned Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Communitv level : Whereas, in respect of products of categories 5, 26 and 59 (order Nos 40.0050, 40.0260 and 40.0590), originating in India, the relevant ceiling respectively amounts to 1 510 000 pieces, 3 950 000 pieces and 310 tonnes ; Whereas on 29 March 1993 imports of the products in question into the Community, originating in India, a country covered by preferential tariff arrangements, reached and were charged against that ceiling ; Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to India, HAS ADOPTED THIS REGULATION : Article 1 As from 25 June 1993 the levying of customs duties, suspended pursuant to Regulation (EEC) No 3832/90, shall be re-established in respect of the following products, imported into the Community and originating in India : Order No Category(unit) CN code Description 40.0050 5 6101 10 90 Jerseys, pullovers, slipovers, waistcoats, twinsets, (1 000 pieces) 6101 20 90 cardigans, bed jackets and blazers, anoraks, wind ­ 6101 30 90 cheaters, waister jackets and the like, knitted or crocheted 6102 10 90 6102 20 90 6102 30 90 6110 10 10 61101031 6110 10 35 6110 10 38 61101091 6110 1095 6110 1098 6110 20 91 6110 20 99 61103091 6110 30 99 40.0260 26 6104 41 00 Women's or girls' dresses, of wool, of cotton or (1 000 pieces) 6104 42 00 man-made fibres 6104 43 00 6104 44 00 6204 41 00 6204 42 00 6204 43 00 6204 44 00 (') OJ No L 370, 31 . 12. 1990, p. 39. O OJ No L 396, 31 . 12. 1992, p. 1 . No L 150/6 Official Journal of the European Communities 22. 6. 93 Order No Category(unit) CN code Description 40.0590 59 (tonnes) Carpets and other textile floor coverings other than the carpets of category 58 5702 10 00 . 5702 31 10 5702 31 30 5702 31 90 5702 32 10 5702 32 90 5702 39 10 5702 41 10 5702 41 90 5702 42 10 5702 42 90 5702 49 10 5702 51 00 5702 52 00 ex 5702 59 00 5702 91 00 5702 92 00 ex 5702 99 00 5703 5703 5703 5703 5703 5703 5703 5703 5703 5703 5703 5703 5703 ex 5703 10 10 10 90 20 11 20 19 20 91 20 99 30 11 30 19 30 51 30 59 30 91 30 99 90 10 90 90 5704 10 00 5704 90 00 5705 00 10 5705 00 31 5705 00 39 ex 5705 00 90 Article 2 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 18 June 1993 . For the Commission Christiane SCRIVENER Member of the Commission

Title: My apartment has doubled my rent Question:Hello all and thank you for your time reading this. I currently have a lease for an apartment that ends on 11/5 and I want to leave the apartment to move out of state. My lease states that I need to give 60 days notice to leave the apartment, but I thought it said 30-days, so I haven't yet given notice, even though I am past the latest date I could have given notice to leave cleanly in accordance with the lease. A few days ago, the apartment managers put a note on my door that offers me to extend my lease by another year at a slight premium, or to go month-to-month and pay literally two times as much per month as I was paying before. It seems like if I want to leave, I can't do so before 60 days from Monday (when I'd first be able to provide notice) and any amount of time I spend in the apartment after 11/5 will be at the cost of twice what I normally pay. How can it be that my apartment is allowed to double my rent like this? Are there limitations on how much my rent can be increase (the apt is in Nevada)? Is there any legal ground I can stand on to complain about this legal loophole of not giving notice and being immediately responsible for paying whatever arbitrary increase my apartment managers want to force me into? Once again, thank you for your time reading this. Answer #1: There are no laws in Nevada limiting rent increases.

San 8emardliO 3124121105   RECORDING REQUESTED BY:   8:rlConlruller -Recorder         RECORDING REQUESTED BY: LandAmerica Commercial Services   PREPARED/DRAFTED BY AND RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:   BEST & FLANAGAN LLP 225 South Sixth Street, Suite 4000 Minneapolis, Minnesota 55402 Attn: Bradley F. Williams   Order/Escrow No.: PHI-D5-18594HSE   Loan No.: 010-00001242   [Missing Graphic Reference]   (SPACE ABOVE THIS LINE FOR RECORDER'S USE) TRUSTOR: Name: CALIFORNIA VALLEY ASSOCIATES Address: 1150 First Avenue, Suite 920   King of Prussia, Pennsylvania 19506 TRUSTEE:   Name: COMMONWEALTH LAND TITLE Address: 3131 Camino Del Rio, Suite 1400   San Diego, California 92103 BENEFICIARY:   Name: ARTESIA MORTGAGE CAPITAL CORPORATION Address: 1180 NW Maple Street, Suite 202   Issaquah, Washington 98027 TRUSTOR: Name: CALIFORNIA VALLEY ASSOCIATES Address:   TRUSTEE:   Name: COMMONWEALTH LAND TITLE Address:   BENEFICIARY:   Name: ARTESIA MORTGAGE CAPITAL CORPORATION Address:   Issaquah, Washington 98027 NOTICE: THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY HEREIN CONVEYED.  NOTICE: DO NOT DESTROY THIS DEED OF TRUST OR THE NOTE (IF IT IS IN YOUR POSSESSION) WHICH IT SECURES AS THESE MUST BE PRESENTED TO THE TRUSTEE FOR CANCELLATION IN ORDER TO OBTAIN A RECONVEYANCE. THE RECONVEYANCE MUST BE RECORDED IN THE OFFICE OF THE COUNTY RECORDER, THIS DOCUMENT CONSTITUTES A FIXTURE FlLING IN ACCORDANCE WITH SECTION 9502(c) OF THE CALIFORNIA UNIFORM COMMERCIAL CODE. Description: San Bernardino, CA Document-Year. Doc ID 2005.202586 Page: 2 of 58 Order: 327283 Comment:       COMMERCIAL DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING FINANCING STATEMENT AND ASSIGNMENT OF LEASES, RENTS, INCOME AND PROFITS THE PROMISSORY NOTE SECURED HEREBY PROVIDES FOR A: FIXED INTEREST RATE THIS COMMERCIAL DEED OF TRUST, SECURITY AGREEMENT, FIXTURE FILING FINANCING STATEMENT AND ASSIGNMENT OF LEASES, RENTS, INCOME AND PROFITS (this "Security Instrument,,) is made and given as of February 21, 2005, by CALIFORNIA VALLEY ASSOCIATES, a(n) New York limited partnership, whose address is 1150 First Avenue, Suite 920, King of Prussia, Pennsylvania 19506 ("Borrower," and for purposes of Article 3 hereof, "Assignor"), to COMMONWEALTH LAND TITLE, and all successors and assigns, whose address is 3131 Camino Del Rio, Suite 1400, San Diego, California 92103, Attn: Anni Fredericksen (herein called "Trustee"), for the benefit of ARTESIA MORTGAGE CAPITAL CORPORATION, a Delaware corporation, whose address is 1180 NW Maple Street, Suite 202, Issaquah, Washington 98027, and its successor and assigns (in each case, "Lender," and for purposes of Article 3 hereof, 'Assignee").   WHEREAS, Borrower is justly indebted to Lender in the principal sum of Three Million Eight Hundred Fifty Thousand and 00/100 Dollars ($3,850,000.00), pursuant to a certain Fixed Rate Note of even date herewith, more particularly described below,   NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, including the Indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Borrower hereby grants a first priority security Interest In, and Irrevocably gives, grants, transfers, aliens, enfeoffs, conveys, confirms, warrants, assigns, mortgages, bargains, sells and pledges to Trustee, IN TRUST FOREVER, WITH ALL POWERS OF SALE AND STATUTORY RIGHTS, for the benefit and security of Lender, under and subject to the terms and conditions hereinafter set forth, the following property, rights, interests and estates now owned, or hereafter acquired, by Borrower (collectively, the 'Property"):   (a) the real property described in Exhibit A attached hereto and made a part hereof (collectively, the "Land,,), together with additional lands, estates and development rights hereafter acquired by Borrower for use in connection with the development, ownership or occupancy of such real property, and all additional lands and estates therein which may, from time to time, by supplemental mortgage or otherwise be expressly made subject to the lien of this Security Instrument;   (b) any and all buildings, structures and other improvements now or hereafter erected, constructed, placed or located on the Land including, without limitation, fixtures, tenements, attachments, appliances, equipment, building systems, machinery, and other articles now or hereafter attached to or used in connection with said buildings, structures and other improvements (collectively, the 'Improvements"), and any and all additions to, substitutions for or replacements of such Improvements and such Land and all interests, estates or other claims, both In law and equity, which Borrower now has or may hereafter acquire in the Land or the Improvements, including, without limitation, all right, title and interest now owned or hereafter acquired by Borrower in and to any greater estate in the Land or the Improvements;   (c) all easements, tenements, hereditaments, appurtenances, rights-of-way and rights now owned or hereafter acquired by Borrower used or useful in connection with, or located on, under or above all or any part of, the Land or as a means of access thereto, including, without limitation, all rights pursuant to any trackage agreement; all rights to the nonexclusive use of common drive entries; all oil and gas and other hydrocarbons; all minerals, crops, timber and other emblements; all mineral rights, gas rights, royalties and profits arising from or accruing to the Property, water, groundwater, water rights and shares of stock evidencing the same; water stock and irrigation rights accruing 10 or necessary for the use of the Property including but not limited to all water rights, ditch and ditch rights, reservoir and reservoir -2­   Description: San Bernardino, CA Document-Year. Doc ID 2005.202686 Page: 3 of 58 Order: 327283 Comment::       rights, stock or interest in water, irrigation or ditch companies, any and all right, title and interest of Borrower, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Land; and any and all sidewalks, vaults, alleys and strips and gores of land adjacent to or used in connection with the Land (collectively, the "Appurtenances,,);   (d) all leasehold estate, right, title and interest of Borrower in and to all written and oral leases, subleases, subtenancies, licenses, franchises, usufructs, occupancy agreements and other agreements affecting all or any portion of the Property or the Improvements or the use or occupancy thereof, now or hereafter existing or entered into, whether before or after any proceeding is instituted by or against Borrower under 11 U.S.C. § 101 et seq, as amended (the "Bankruptcy Code"), including, without limitation, extensions, renewals and subleases (all of the foregoing, individually, a "lease" and collectively, "leases"), and all rights and claims of any kind that Borrower may have against any tenant under the Leases or in connection with the termination or rejection of the Leases in a bankruptcy or insolvency proceeding, and all right, title and interest of Borrower thereunder, including, without limitation, all cash or security deposits, prepaid or advance rentals, and deposits or payments of similar. nature which are hereby specifically assigned, transferred and set over to Lender; including, without limitation, all rents, royalties, issues, revenues, profits, proceeds, income and other benefits, including, without limitation, accounts receivable, of, accruing to or derived from such Leases and from the renting, leasing or bailment of Improvements and equipment, including, without limitation, any payments made by tenants under Leases In connection with the termination of any Lease and all oil, gas and other mineral rights, royalties and profits, whether paid or accruing before or after any proceeding is instituted by or against Borrower under the Bankruptcy Code (all of the foregoing, collectively, "Rents"), and all proceeds from the sale or other disposition of the Leases and the right to receive and apply the Rents to the payment of the Secured Obligations (defined below) and all lease guaranties, letters of credit and any other supporting obligation for any of the Leases (collectively, "Lease Guaranties') given by any guarantor in connection with any of the Leases, and all rights, powers, privileges, options and other benefits of Borrower as lessor under the Leases and beneficiary under Lease Guaranties;   (e) all the estate, interest, right, title, other claim or demand, both in law and in equity, including, without limitation, claims or demands with respect to the proceeds of and any unearned premiums on Insurance policies In effect with respect to the Property, which Borrower now has or may hereafter acquire in the Property, including, without limitation, the right to receive and apply the proceeds of any insurance, judgments or settlements made in lieu thereof, for damage to the Properly, and any and all awards made for the taking by eminent domain, or by any proceeding of purchase in lieu thereof, of the whole or any part of the Property, including, without limitation, any awards resulting from a change of grade of streets and awards for severance damages;   (f) all goods, Chattels, construction materials, furniture, furnishings, equipment, machinery, apparatus, appliances, and other items of personal property, whether tangible or intangible, of any kind, nature or description, whether now owned or hereafter acquired by Borrower, including, without limitation, improvements including, without limitation, furnaces, steam boilers, hot water boilers, oil burners, pipes, radiators, air conditioning and sprinkling systems, gas and electric fixtures, carpets, rugs, shades, awnings, screens, elevators, motors, dynamos, cabinets, and all other furnishings, tools, equipment and machinery, appliances, building supplies, materials, fittings and fixtures of every kind, which is, are or shall hereafter be located upon, attached, affixed to or used or useful, either directly or indirectly, in connection with the complete and comfortable use, occupancy and operation of the Property and Improvements, whether or not any of such personal property is now or becomes a Fixture (defined below), including, without limitation, any and all licenses, permits or franchises used or required in connection with such use, occupancy or operation, together with any and all additions, replacements or substitutions thereto, thereof or therefor, as well as the proceeds thereof or therefrom regardless of form (hereinafter sometimes together referred to as the "Personal Property"; such Personal Property shall include, without limitation, all Accounts, Documents, Instruments, Chattel Paper, Goods, Equipment, General lntangibles, Fixtures and Inventory, as those terms are defined in the Uniform Commercial Code of the State where the Property is located); -3­   Description: San Bernardino, CA Document-Year. Doc ID 2005.202685 Page: 4 of 58       (g) all plans and specifications, contracts and subcontracts for the construction of any Improvements, density rights, bonds, permits and other development or use entitlements, licenses, guarantees, warranties, causes of action, claims, condemnation proceeds, profits, security deposits, utility deposits, governmental agency fees and deposits and refunds thereof, refunds of taxes or insurance premiums, policies, claims, and proceeds of insurance, claims and proceeds arising from condemnation, vehicles, together with all present and future attachments, accessions, replacements, additions, products and proceeds thereof; (h) all monies deposited by Borrower, or deposited on behalf of Borrower, with any City, County, public body or agency, Irrigation, sewer or water district or company, and any other body or agency, for the installation, or to secure the installation, of any utility pertaining to the Property; (i) all refunds, rebates, reimbursements, reserves, deferred payments, deposits, cost savings, governmental subsidy payments, governmentally-registered credits (such as emissions reduction credits), other credits, waivers and payments, whether In cash or in kind, due from or payable by (i) any federal, state, municipal or other governmental or quasi-governmental agency, authority or district (each, a "Governmental Agency") or (ii) any Insurance or utility company relating to any or all of the Property or arising out of the satisfaction of any conditions imposed upon or the obtaining of any approvals for the development or rehabilitation of the Property;   (j) all refunds, rebates, reimbursements, credits and payments of any kind due from or payable by any Governmental Agency for any taxes, special taxes, assessments, or similar governmental or quasi-governmental charges or levies imposed upon Borrower with respect to the Property or upon any or all of the Property or arising out of the satisfaction of any conditions imposed upon or the obtaining of any approvals for the development or rehabilitation 01 the Property;   (k) all monies deposited by Borrower with or for the benefit of Lender pursuant to any reserve, escrow or cash collateral agreements executed by Borrower in favor of Lender;   (l) contract rights, accounts receivable, management agreements, business records;   (m) all additions, accessions, replacements, substitutions, proceeds and products of the real and personal property, tangible and Intangible, described herein; (The Property does not include any equipment, inventory, furniture, furnishings or trade fixtures owned and supplied by tenants of the Property, except to the extent of Borrower's landlord's lien (if any) therein.)   FOR THE PURPOSE OF SECURING:   1.   repayment of indebtedness in the total principal amount of Three Million Eight Hundred Fifty Thousand and 00/100 Dollars ($3,850,000.00) with interest, additional interest, default interest, late charges, prepayment charges and other sums and charges thereon (the "Loan"), evidenced by that certain Fixed Rate Note, of even date herewith, and all modifications, extensions, renewals and replacements thereof or judgments thereon (collectively, the "Note"), executed by Borrower in favor of Lender, and with a final maturity date of April 11, 2015, the terms of which are incorporated by reference as though set forth in full;   2.   the payment of any additional amounts, with interest thereon, that may be hereafter loaned by Lender to Borrower, which additional loans are evidenced by a promissory note or notes containing a recitation that this Security Instrument secures the payment of such note or notes. 3.   payment of all sums advanced by Lender, its successors and assigns, or Trustee to protect, cure for or maintain the Property, or any portion thereof, with interest thereon at the Default Rate (as defined in the Note) and all sums advanced by Lender or Trustee under the terms of or for the -4­   Description: San Bernardino, CA  Document-Year.DocID 2005.202686 Page: 5 of 58       enforcement of the Loan Documents (defined below), with interest thereon at the Default Rate (as defined in the Note); 4.   observance, performance and discharge of every obligation, covenant or agreement of Borrower contained herein or in the Note;   5.   observance, performance and discharge of every obligation, covenant and agreement of Borrower contained in any document, instrument or agreement now or hereafter executed by Borrower which recites that the obligations thereunder are secured by this Security Instrument, including, without limitation, payment of all other sums, with interest thereon, which may hereafter be loaned to Borrower, or its successors or assigns, by Lender, or its successors or assigns, when evidenced by a promissory note or notes containing a recitation that they are secured by this Security Instrument;   6.   compliance with and performance of each and every material provision of any declaration of covenants, conditions and restrictions pertaining to the Property or any portion thereof; and   7.   payment and performance of all obligations of Borrower arising from any and all existing and future agreements with lender which may afford interest rate protection to all or part of the Loan, when such agreement recites that the obligations thereunder are secured by this Security instrument. (The principal of and the interest on the indebtedness evidenced by the Note; all charges, fees and other sums as provided In the loan Documents; and the principal of and interest on any other indebtedness secured by this Security Instrument are referred to herein, collectively, as the "Secured Obligations".)   PROVlDED,·HOWEVER, that if·the Secured Obligations shall have-been.-paid-in cash and performed In full, then, in such case the Trustee, at Lender's direction, shall, at the request and expense of Borrower, satisfy this Instrument and the estate, right, title and interest of the Trustee and Lender in the Property Shall cease, and upon payment to lender of all costs and expenses incurred for the preparation of the release hereinafter referenced and all recording costs if allowed by law, the Trustee and Lender shall release this Instrument and the lien, operation and effect hereof by proper instrument.   The Note, this Security Instrument and any other document or instrument executed by Borrower in connection with the Loan shall be collectively referred to as the "Loan Documents: All initially capitalized terms used herein which are defined in the Note shall have the same meaning herein unless the context otherwise requires.   TO PROTECT THE SECURlTY OF THIS SECURlTY INSTRUMENT, BORROWER HEREBY COVENANTS AND AGREES AS FOLLOWS:   ARTICLE 1. COVENANTS AND AGREEMENTS OF BORROWER   1.01 Payment of Secured Obligations. Borrower shall pay and perform as and when due the Secured Obligations.   1,02 Performance of Other Obligations; Preservation, Maintenance and Management of Property. Borrower shall perform, comply with and abide by each and every one of the covenants, agreements and conditions contained and set forth in the Note and this Security Instrument Borrower: (a) shall keep the Property in good condition and repair;   (b) shall not remove, demolish or structurally alter any of the Improvements without the prior written consent of Lender; provided, however, Lender's consent shall not be required in connection with cosmetic and non-structural alterations;   -5­   Description: San BernardinorCA Document-Year.DocID 2005.202686 Page: 6 of 58         (c) shall complete promptly and in a good and workmanlike manner any Improvement which may be now or hereafter constructed on the Property and promptly restore in like manner any portion of the Improvements which may be damaged or destroyed from any cause whatsoever, and pay when due all claims for labor performed and materials furnished therefor;   (d) shall comply with and abide by all laws, ordinances, rules, regulations and orders of governmental authorities now or hereafter affecting the Property or any part thereof or requiring any alterations or improvements to be made thereon, including without limitation, all Environmental Laws (as defined in Section 1.03 hereof), and the Americans with Disabilities Act:   (e) shall comply with and abide by all of its obligations under any covenant, condition, ; restriction or agreement of record affecting the Property;   (f) shall not commit or permit any waste or deterioration of the Property   (g) shall not allow changes in the use for which all or any part of the Property is intended; (h) shall maintain all certificates, licenses and permits necessary to keep the Property operating in conformity with the use for which all or any part of the Property is Intended; (i)  shall not initiate or acquiesce in a change in the zoning classification of the Property without Lender's prior written consent; (j) shall insure that at all limes the Land constitutes one or more separate legal lots complying with all subdivision or platting laws, ordinances, rules or regulations applicable to the Property, or other laws relating to the division Dr separation of real property; (k) shall Insure that at all times the Land Is assessed for real estate tax purposes as one Dr more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots, and no other land or Improvements Is assessed and taxed together with the Property or any portion thereof; (l) shall not abandon the Property; and (m) shall do any and all other acts which, from the character and use of the Property, may be reasonably necessary to maintain, protect and preserve the Property and protect the security of Lender. The Property shall be managed by either: (I) Borrower or a person/entity affiliated with Borrower approved by Lender for 50 long 85 Borrower or said affiliated person/entity is managing the Property in a commercially prudent and reasonable manner; or (iO a professional property management company approved by Lender. Management by said affiliated person/entity or professional property management company (in either case, the 'Property Manager") shall be pursuant to a written agreement approved by Lender (the 'Management Agreement. In no event shall any manager be removed or replaced or the terms of any Management Agreement modified or amended without prior written consent of Lender. Notwithstanding the provisions of any Management Agreement or any other agreement now or hereafter existing or entered into (together with any and all extensions, renewals, substitutions, replacements, amendments, modifications and/or restatements thereof, the 'Management Agreements; to the contrary. Borrower shall not pay any Property Manager, nor shall any Property Manager accept, total management fees (i.e., on-site and off-site management fees or other compensation, whether monetary or nonmonetary) ("Management Fees; in excess of four percent (4%) of the effective gross income from the Property per year, nor shall such Management Fees be payable in advance of receipt of such income. The Management Agreements and all of the rights and interests thereunder including, without limitation, the rights to Management Fees are and at all times will be subject and subordinate to the Loan and the Loan Documents and to any renewals, extensions, modifications, assignments, replacements, or consolidations thereof, and the rights, privileges and powers of Lender hereunder and thereunder. Such Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 7 of 58 Order: 327283 COmment:       subordination shall be self-operative and no further instrument shall be required to effect such subordination, but Borrower agrees to execute and deliver, and to cause any Property Manager to execute and deliver, any instrument which Lender may deem necessary or appropriate to confirm such subordination. Such subordination means, among other things, that Management Fees shall not be paid or accepted unless all current expenses attributable to the ownership and operation of the Property, including, without limitation, current expenses relating to Borrower's liabilities and obligations with respect to the Loan and the Loan Documents (collectively, "operating Expenses"), have been paid. In the event (x) of any Event of Default (defined below) under the Loan Documents or under any Management Agreement then in effect, which default is not cured within any applicable grace or cure period, (y) the debt service coverage ratio applicable to the Property is less than 1.15 to 1.00 for the twelve (12) month period immediately preceding the calculation, or (z) of the bankruptcy or insolvency of the manager, or Borrower, if the Property Manager is affiliated with Borrower, Lender shall have the right to immediately terminate, or to direct Borrower to immediately terminate, such Management Agreement and to retain, or to direct Borrower to retain, a new management agent approved by Lender. All Rents generated by or derived from the Property shall first be utilized solely for Operating Expenses, and none of the Rents generated by or derived from the Property shall be diverted by Borrower and utilized for any other purpose unless all such current expenses attributable to the ownership and operation of the Property have been fully paid and satisfied. 1.03 Hazardous Waste. Borrower at all times shall keep the Property and groundwater of the Property free of Hazardous Substances (defined below). Borrower shall not permit its tenants or any third party to enter tile Property to use, generate, manufacture, store, release, threaten release, or dispose of Hazardous Substances in, on or about the Property; provided, however, that Borrower may permit reasonable incidental use and storage of Hazardous Substances on the Property provided that such use and storage complies with the following: (a) such use and storage shall be limited to customary supplies which are normal incidents of the ownership and management Of real property which is similar to the Property ("Permitted Uses"); (b) no such products or supplies create any risk of harm to persons or property. including, without limitation, the Property; and (c) all such products and supplies are used and stored In strict compliance with all applicable Environmental Laws (defined below). Borrower shall give Lender prompt written notice of any claim by any person, entity, or governmental agency that a violation of Environmental Laws has occurred with respect to all or any portion of the Property, or that a release or disposal of Hazardous Substances has occurred on the Property (except Permitted Uses as may be permitted pursuant to the preceding sentence), or that Hazardous Substances are present at the Property or otherwise affect the Property (except Permitted Uses). Borrower, through its professional engineers and at Its cost, shall promptly and thoroughly Investigate suspected Hazardous Substances contamination of the Property and shall provide to Lender a detailed description of the investigation, and any copies of reports at Borrower's expense. Borrower shall forthwith remove, repair, clean up, and/or detoxify any Hazardous Substances from the Property, to the extent that the presence andlor maintenance of such Hazardous Substances in, on or about the Property constitutes a violation of any federal, state or local law, ordinance, order, decree or regulation now or hereafter in effect and applicable to Borrower or the Property, and whether or not Borrower was responsible for the existence of the Hazardous Substances in, on or about the Property. "Hazardous Substances" shall mean (i) any chemical, compound, material, mixture or substance that is now or hereafter defined or listed in, or otherwise classified pursuant to, any Environmental Laws as a "hazardous substance: "hazardous material; 'hazardous waste; "extremely hazardous waste; "acutely hazardous waste: "radioactive waste,' "infectious waste," "biohazardous waste” “Toxic substance” "pollutant," "Toxic pollutant," and “contaminant," as well as any formulation not mentioned herein intended to define, list, or classify substances by reason of deleterious properties such as igniteabilty, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP toxicity,' or "TCLP toxicity"; (ii) petroleum, natural gas, natural gas liquids, liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas) and ash produced by a resource recovery facility utilizing a municipal solid waste stream, and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas, or geothermal resources; (iii) asbestos in any form; (IV) urea formaldehyde foam insulation; (v) polychlorinated biphenyls (PCBs); (vi) radon; (vii) any other chemical, material, or substance which is (because of its quantity, concentration, or physical or chemical characteristics) limited or regulated for health and safety reasons by any governmental authority, or which poses a significant   ·7·   Description: San Bernardino,CA Doaument-Year.DocID 2005.202586 Page: 8 of 58       present or potential hazard to human health and safety or to the environment if released into the workplace or the environment; (viii) any 'Hazardous Substance' or terms of similar import as defined in the State where Property is located or substances otherwise regulated or controlled in such State because of concerns for health, safety and/or property, and (IX) lead-based paint. 'Environmental Laws' means any and all requirements of courts including, without limitation, state courts whose decisions may be based on the common law of the aforementioned state} or governmental authorities relating to health, safety, the environment or to any Hazardous substances, including, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act ("RCRA”), the Hazardous Substances Transportation Act, the Toxic Substances Control Act, the Clean Water Act, the Endangered Species Act, the Clean Air Act, the Occupational Safety and Health Act and all similar federal, state and local environmental statutes, ordinances, and the rules, regulations, orders, decrees and guidance documents related thereto, whether any of the foregoing shall not exist or shall hereafter be enacted, decided, promulgated or published. Borrower represents and warrants to Lender that to the best of Borrower's knowledge, except as set forth In that certain Environmental Questionnaire delivered by Borrower to Lender prior to the date hereof, and that certain environmental site assessment delivered to Lender in connection with the Loan (collectively, the "Environmental Report'): (A) during the period of Borrower's ownership of the Property: (1) there has been no use, generation, manufacture, storage, treatment, disposal, discharge, release, or threatened release of any Hazardous Substances by any person on or around the Property except Permitted Uses; and (2) there have been no Hazardous Substances transported over or through the Property except In connection with Permitted Uses; (B) after diligent inquiry, Borrower has no knowledge of, or reason to believe that there has been: any use generation, manufacture, storage, treatment, disposal, release, or threatened release of any Hazardous Substance, hazardous waste or other waste by any prior owners or prior occupants of the Property or by any third parties onto the Property; or any actual or threatened litigation or claims of any kind by any person relating to these matters; (C) no Hazardous Substances in excess of permitted levels or reportable quantities under applicable Environmental Laws are present in or about the Property or any nearby real property that could migrate to the Property; (0) no underground storage tanks of any kind are or ever have been located in or about the Property; (E) the Property and all operations and activities at, and the use and occupancy of, the Property, comply with all applicable Environmental Laws; (F) Borrower and every person currently having an interest in or conducting operations on the Property has complied wHh, and is now in strict compliance with, every permit, license, and approval required by all applicable Environmental Laws for all activities and operations at, and the use and occupancy of, the Property; and «(3) there are no claims related to Hazardous Substances pending or threatened with regard to the Property or against Borrower or any indemnitor other than Borrower (Individually or collectively, 'Indemnitorj under the Environmental Indemnity (as hereinafter defined). Borrower represents and warrants that, to the best of Borrower's knowledge, any written disclosure submitted by or on behalf of Borrower to Lender concerning any release or threatened release, past or present compliance by Borrower, or any other person of any Environmental Laws applicable to the Property, and any environmental concerns relating to the Property, was true and complete when submitted and continues to be true and complete as of the date of this security Instrument   Borrower (1) releases and waives any future claims against Lender for indemnity or contribution In the event Borrower becomes liable for Cleanup or other costs under any Environmental Laws or under any Hazardous Substances-related claim; (2) shall reimburse Lender, on demand, for all costs and expenses incurred by Lender in connection with any review, approval, consent, or inspection relating to the environmental provisions in this Security Instrument together with interest, after demand, at the highest rate permitted under applicable law; and (3) shall indemnify, defend, and hold Lender and Trustee harmless from and against all losses, costs, claims, damages, penalties, liabilities, causes of action, judgments, court costs, attorneys' fees and other legal expenses, costs of evidence of title, cost of evidence of value, and other expenses (collectively, "Expenses,,), including, without limitation, any Expenses incurred or accruing after the foreclosure of the lien of this Security Instrument, which either may suffer or incur and which directly or indirectly arise out of or are in any way connected with the breach of any environmental provision either In this Security Instrument or in any Loan Document or as a consequence of any release or threatened release or the presence, use, generation, manufacture,   Description: San Bernardino7 CA Document-Year.DocID 2005.202686 Page: 9 of 58       storage, disposal, transportation, release, or threatened release of any Hazardous Substances on or about the Property caused or permitted by Borrower, any prior owner or operator of the Property, any adjoining landowner or any other party, including, without limitation, the cost of any required or necessary monitoring, investigation, repair, cleanup, remedy, or detoxification of any Hazardous Substances and the preparation of any closure, remedial action, or other required plans, whether that action is required or necessary by reason of ads or omissions occurring prior to or following the recordation of this Security Instrument. Borrower's obligations will survive the satisfaction, release, or cancellation of the Loan, the release and reconveyance or partial release and reconveyance of this Security Instrument, and the foreclosure of the lien of this Security Instrument or deed in lieu thereof. Notwithstanding anything in this paragraph to the contrary, this paragraph shall not apply to the introduction and initial release of Hazardous Substances on the Property from and after the date that Lender acquires title to the Property through foreclosure or a deed in lieu of foreclosure (the "Transfer Date"); provided, however, Borrower shall bear the burden of proof that the introduction and initial release of such Hazardous Substances: (i) occurred subsequent to the Transfer Date, (ii) did not occur as the result of any act or omission of Borrower or its agents, and (iii) did not occur as a result of a continuing leaching, seeping, migration or release of any Hazardous Substances introduced prior to the Transfer Date in, on, under or near the Property.   To the extent permitted by applicable law, Lender or its agents, representatives, alid employees may waive its lien against the Property or any portion of it, including, without limitation, the Improvements and the Personal Property, to the extent that the Property is found to be environmentally Impaired and to exercise all rights and remedies of an unsecured creditor against Borrower and all of Borrower's assets and property for the recovery of any deficiency and environmental costs, including, without limitation, seeking an attachment order. Borrower will have the burden of proving that Borrower or any related party (or an affiliate or agent of Borrower or any related party) was not In any way negligent in permitting the release or threatened release of the Hazardous Substances.   Anything contained in this Security Instrument or in the Loan Documents to the contrary notwithstanding, the Expenses will be exceptions to any nonrecourse or exculpatory provision of the Loan Documents, and Borrower will be fully and personally liable for the Expenses. That liability will not be Iimited to the original principal amount of the obligations secured by this Security Instrument, and Borrower's obligations will survive the foreclosure, deed in lieu of foreclosure, release, reconveyance, or any other transfer of the Property or this Security Instrument. For the purposes of any action brought under this subsection, Borrower waives the defense of laches and any applicable statute of limitations.   Lender and any other person or entity designated by Lender, Including, without limitation, any representative of a governmental entity, and any environmental consultant, and any receiver appointed by any court of competent Jurisdiction, shall have the right, but not the obligation, to enter upon the Property at all reasonable times to assess any and all aspects of the environmental condition of the Property and its use, including, without limitation, conducting any environmental assessment or audit (the scope of which shall be detennined by Lender) and taking samples of soli, groundwater or other water, air, or building materials, and conducting other invasive testing. Borrower shall cooperate with and provide access to Lender and any such person or entity designated by Lender.   If recommended by the Environmental Report or any other environmental assessment or audit of the Property, Borrower shall establish and comply with an operations and maintenance program with respect to the Property, in form and substance reasonably acceptable to Lender, prepared by an environmental consultant reasonably acceptable to Lender, which program shall address any asbestos containing material or lead based paint that may now or in the future be detected at or on the Property. Without limiting the generality of the preceding sentence, Lender may require (1) periodic notices or reports to Lender in form, substance and at such intervals as Lender may specify, (2) an amendment to such operations and maintenance program to address changing circumstances, laws or other matters, (3) at Borrower's sale expense, supplemental examination of the Property by consultants specified by Lender, (4) access to the Property by Lender, its agents or servicer, to review and assess the environmental condition of the Property and Borrower's compliance with any operations and maintenance   -9­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 10 of 58       program, and (5) variation of the operations and maintenance program in response to the reports provided by any such consultants.   1.04 Funds for Taxes, Insurance and Other Charges. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender, on the day monthly installments of principal and interest are payable under the Note (or on another day designated in writing by Lender) until the Note is paid in full, a sum (herein “Impounds” equal to one-twelfth (1/12) of: (a) all real property taxes and assessments (general and special), and all other taxes and assessments of any kind or nature whatsoever, including. without limitation, nongovernmental levies or assessments such as maintenance charges, levies or charges resulting from covenants, conditions and restrictions affecting the Property, which are assessed or Imposed upon the Property or any portion of ii, or become due and payable, and which create, may create or appear to create a lien upon the Property, or any part thereof, or upon any person, property, equipment or other facility used in the operation or maintenance thereof, or any tax or assessment on the Property, or any portion of it, in lieu thereof Dr in addition thereto, or any license fee, tax or assessment imposed on Lender and measured by or based in whole or in part upon the amount of the outstanding Secured Obligations (collectively, "Taxes”; (b) the yearly premium installments for fire and other hazard insurance, rent loss insurance, commercial general liability insurance and such other insurance covering the Property as Lender may require pursuant to Section 1.07 hereof (collectively, “Insurance Premiums”; and (c) if this Security Instrument is on a leasehold, the yearly fixed ground rent, if any, under any ground lease affecting the Property or any portion thereof, all as reasonably estimated initially and from time to time by Lender on the basis of assessments and bills and reasonable estimates thereof. Lender may require Borrower to pay to Lender, in advance, such other Impounds for other taxes, charges, premiums, assessments and impositions in connection with Borrower or the Property which Lender shall reasonably deem necessary to protect Lender's interests (collectively "Other Impositions”. (The Taxes, Insurance Premiums, Other Impositions, and other Hems for which Lender is authorized to collect Impounds hereunder are referred to collectively as "Impositions".) Unless otherwise provided by applicable law, Lender may require Impounds for Other Impositions to be paid by Borrower In a lump sum or in periodic installments, at Lender's option. Any waiver by Lender of a requirement that Borrower pays such Impounds may be revoked by Lender a\ any time upon notice In writing to Borrower.   Lender shall apply the Impounds to pay such Impositions so long as Borrower is not in breach of such rates, ground rent, Taxes, assessments, Insurance Premiums and other Impositions and so long as Borrower is not in breach of any covenant or agreement in this Security Instrument. Lender shall make no charge to Borrower for holding and applying the Impounds, annually analyzing such accounts, or for verifying and compiling said assessments and bills, unless Lender pays Borrower interest, earnings or profits on the Impounds and applicable law permits Lender to make such a charge. If requested by Lender, Borrower shall cause to be furnished to Lender a tax reporting service contract covering the Property of the type, duration and with a company satisfactory to Lender. Unless applicable law requires Interest, earnings or profits to be paid, Lender shall not be required to pay Borrower any Interest, earnings or profits on the Impounds. Lender shall give to Borrower, without charge, an annual accounting of the Impounds, showing credits and debits to the Impounds and the purpose for which each debit to the Impounds was made. The Impounds are pledged as additional security for all sums secured by this Security Instrument.   If the Impounds held by Lender at the time of the annual accounting thereof exceed the amounts deemed necessary by Lender to provide for the payment of such Impositions, as they fall due, or exceed the amounts permitted to be held by applicable law, if no Event of Default is in effect under any of the Loan Documents, Lender shall credit such excess Impounds on the next monthly installment or installments of Impounds due. If at any time the amount of the Impounds held by Lender shall be less than is sufficient to pay such Impositions as they fall due, Borrower shall pay to Lender the amount necessary to make up the deficiency within thirty (30) days after notice from Lender to Borrower requesting payment thereof.   Upon the occurrence of any Event of Default under any of the Loan Documents or Borrower's breach of any covenant or agreement of Borrower In this security Instrument, Lender may apply, in any amount and in any order as Lender shall determine, any Impounds held by Lender at the time of   -10­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: ~~ of 58 Order: 327283 Co.nmlent: -----------­       application, (i) to pay Impositions which are now or will hereafter become due, or (il) as a credit against the sums secured by this Security Instrument. Upon payment in full of all sums secured by this Security Instrument or upon Defeasance (as defined in the Note, if so defined), Lender shall promptly refund to Borrower any Impounds held by Lender.   1.05 Application of Payments. Unless applicable law provides otherwise, all payments received by Lender from Borrower under the Note or this Security Instrument shall be applied by Lender in the following order of priority: (i) to interest payable on the Note; (ii) to principal due on the Note; (iii) to interest payable on advances made pursuant to Section 1.14 hereof; (iv) to principal of advances made pursuant to Section 1.14 hereof; (v) to amounts payable to Lender by Borrower under Section 1.04 hereof; and (vi) any other sums secured by this Security Instrument In such order as Lender, at Lender's option, may determine; provided, however, that Lender may, at Lender's option, apply any sums payable pursuant to Section 1.14 hereof prior to Interest on and principal of the Nota, but such application shall not otherwise affect the order of priority of application specified in this Section 1.05.   1.06 Charges; Liens. Unless Lender shall be collecting (and Borrower shall have paid as required) Impounds pursuant to Section 1.04 above, Borrower shall pay, at Borrower's cost and expense, all Impositions attributable to the Properly, the Note, this Security Instrument, or any part thereof or interest therein by Borrower making or causing to be made payment, when due, directly to the payee thereof, or in such other manner as Lender may designate in writing. Borrower shall promptly furnish to Lender all notices of amounts due under this Section 1.06, and if Borrower shall make payment directly, Borrower shall promptly furnish to Lender receipts evidencing such payments. Borrower shall pay and promptly discharge, at Borrower's cost and expense, all liens, encumbrances and charges upon, and the claims of all persons supplying labor or materials to or in connection with, the Property, or any part thereof or interest therein, without regard to whether such lien, encumbrance, charge or claim is or may be senior and superior to, equal with or junior and inferior to the lien of this Security Instrument. If Borrower shall fail to pay, remove and discharge any such lien, encumbrance, charge or claim, then in addition to any other right or remedy of Lender, Lender may, but shall not be obligated to, discharge the same, either by paying the amount claimed to be due or by procuring the discharge of such lien, encumbrance, charge or claim by depositing in a court a bond or the amount claimed or otherwise giving security for such claim, or by procuring such discharge in such manner as is or may be prescribed by law. Borrower shall, immediately upon demand therefor by Lender, pay to Lender an amount equal to all costs and expenses incurred by Lender in connection with the exercise by Lender of the foregoing right to discharge any such lien, encumbrance, charge or claim, together with interest thereon from the date of such expenditure at the Default Rate.   Borrower shall give Lender prompt written notice of (a) the proposed creation of any county, municipal, quasi governmental or other improvement or special district of any nature or (b) any action in respect to such district, which may affect the Property, including, without limitation, any proposed service plan or modification of such plan, proposed organization of such district and election in regard to such organization, the proposed issuance of bonds by such district and election in regard to such issuance and the proposed inclusion of the Properly in any such district, and Borrower shall not consent to the creation of any such district or any such action in respect to such district without the prior written consent of Lender, which consent shall not be unreasonably withheld.   1.07 Required Insurance; Delivery of Policies. Borrower shall at all times provide, maintain and keep in force or cause to be provided, maintained and kept In force, at no expense to Trustee or Lender, policies of insurance in form and amounts, covering such casualties, risks, perils, liabilities and other hazards >IS provided below. All such insurance policies shall be written by a company or companies authorized and admitted to Issue insurance In the State where the Property is located and having a rating of A2 or better for ratings by Moody's Investors Service, Inc., or A or better for ratings by Fitch Investors Service, LP. or Standard & Poor's Ratings Services.   (a) Borrower shall initially maintain, until Lender shall otherwise indicate in writing, the following insurance:   -11­   Description: San BernardinorCA Document-Year.DocID 2005.202686 Page: ~2 of 58 Order: 327283 Comment: -----_.       (1) Property Insurance. Borrower, at its sole cost and expense, shall keep all Improvements, boilers and machinery, and all other Personal Property of Borrower now or hereafter situated on the Property insured during the term of this Security Instrument against loss or damage by fire and against loss or damage by other risks now embraced by 'Special Form" or "All Risk" coverage, so called, (including without limitation, riot and civil commotion, vandalism, malicious mischief, water, fire, burglary and theft) without any exclusion for terrorism, boiler and machinery coverage (If applicable), flood and/or earthquake Insurance (if applicable), all as may be required by lender, in amounts at all times sufficient to prevent Lender from becoming a co-insurer within the terms of the applicable policies and under applicable insurance law, providing for deductibles (not to exceed the lesser of 1% of the face amount of any such policy or $10,000), maintained in an amount not less than 100% of the full replacement cost of the Improvements and betterments and Personal Property (equivalent to the insurable value of the Improvements and Personal Property as determined by an appraisal acceptable to Lender), on an agreed amount basis, without deduction for depreciation and without reference to co­insurance (an insurance to value provision is not permitted in the policy).   (2) Liability Insurance. Borrower shall also provide commercial general liability insurance, on the so-called "occurrence" form naming Lender as an additional insured, including personal injury, death and property damage liability, and against any and all claims, including all legal liability to the extent insurable and imposed upon Lender and all court costs and legal fees and expenses, in an amount not less than One Million Dollars ($1,000,000), combined single limit policy, Two Million Dollars ($2,000,000) In the aggregate, for personal injury and property damage, to be without a deductible.   (3) Business Income Insurance. "Business income" and/or "rental income" insurance, each naming Lender as loss payee, in an amount sufficient to avoid any co insurance penalty and to provide proceeds which will cover a period of not less than twelve (12) months from the date of casualty or loss; the term "rental income" shall mean the sum of (A) the total then ascertainable Rents payable under the Leases (defined below) and (8) the total ascertainable amount of all other amounts to be received by Borrower from third parties which are the legal obligation of the tenants under such Leases, reduced to the extent such amounts would not be received because of operating expenses not incurred during a period of non occupancy of that portion of the Property then not being occupied.   (4) Flood Insurance. If the Property is now, or hereafter becomes, situated in a federally designated special flood hazard area, then Borrower shall obtain and maintain at all times thereafter, a policy of flood insurance in such amount as lender may, from time to time require, and shall otherwise comply with the requirements of the National Flood Insurance Program. A Life of Loan Flood Hazard Certificate shall be provided to lender identifying the Flood Hazard Zone in which the Property is situated.   (5) Law and Ordinance Insurance. If any of the Improvements or the use of the Property shall at any time constitute a legal non-conforming structure or use, Borrower shall obtain an "Ordinance or Law Coverage" or "Enforcement" endorsement, which shall Include coverage for (A) loss of value On an amount no less than 100% of the full replacement cost of the Improvements), (8) demolition and debris removal costs On an amount not less than 15% of the policy limit or insured value), and (C) increased costs of construction (in an amount not less   (6) Builder's Risk Insurance. At all times during which structural construction, repairs or alterations are being made with respect 10 the Improvements, Borrower shall also maintain (A) owner's contingent or protective liability insurance covering claims not covered by or under the terms or provisions of the above-mentioned commercial general liability insurance policy; and (B) the insurance provided for in subsection (1) above written in a so-called builder's risk completed value form (w) on a non-reporting basis, (Xl against all risks insured against pursuant to the first sentence of this paragraph, (y) Including permission to occupy the Property, and (z) with an Agreed Amount endorsement waiving co­insurance provisions.   (7) Workers' Compensation Insurance. If Borrower has employees, Borrower shall also maintain workers' compensation, subject to the statutory limits of the state where the Property -12­ Description: San Bernardino,CA Document-Year.DocID 2005.202586 Page: 13 of 58       Is located, and employer's liability insurance with a limit of at least $1,000,000 per accident and per disease per employee, with respect to any work or operations on or about the Property. (b) The original policy or policies and renewals thereof (or, at the sole option of Lender, duplicate originals or certified copies thereof), together with receipts evidencing payment of the premium therefor, shall be deposited with Lender, and Borrower hereby assigns to lender the proceeds of such policy or policies as additional security for the Secured Obligations. Not more than forty-five (45) days after closing the Loan, Borrower shall deliver to Lender the Origin,.1 policy or policies (or, at the sole option of Lender, duplicate originals or certified copies thereof). Such insurance may be provided in one policy or separate policies for hazard Insurance, rental or business Income Insurance, general liability, earthquake, environmental or flood (or other special perils) insurance. Each such policy of insurance shall contain a non-contributing loss payable clause and a mortgagee clause in favor of and In form acceptable to Lender for policies referred to under subsections 1.07(a)(I), (3), (4), (5), and (6), and naming Lender as an additional insured for policies referred to under subsections 1.07(a) (2) and (7), and shall provide for not less than thirty (30) days prior written notice to Lender of any intent to modify, cancel, or terminate the policy or policies or the expiration of such policies of insurance, and must include a Lender's Loss Payable endorsement, and such other endorsements as required by Lender, including a replacement cost endorsement and agreed amount endorsement. If the insurance required under this Section 1.07 or any portion thereof is maintained pursuant to a blanket policy, Borrower shall furnish to Lender a certified copy of such policy, together with an Original Evidence of Insurance (Accord Form 2B) indicating that Lender (and its successors and/or assigns) is an insured under such policy in regard to the Property and showing the amount of coverage apportioned to the Property which coverage shall be in an amount sufficient to satisfy the requirements hereof. Not less than thirty (30) days prior to the expiration dates of each policy required of Borrower hereunder, Borrower will deliver to Lender a renewal policy or policies marked "premium paid" or accompanied by other evidence of payment and renewal satisfactory to Lender, and In the event of foreclosure of this Security Instrument, any purchaser or purchasers of the Property shall succeed to all rights of Borrower, including, without limitation, any rights to unearned premiums, in and to all insurance policies assigned and delivered to Lender pursuant to the provisions of this Section 1.07.   (C) Notwithstanding the foregoing, at any time while any amounts remain outstanding under the Loan, upon the written request of Lender, Borrower shall be required to maintain such insurance as may from time to time be required under Lender's then current underwriting guidelines. 1.08 Payment of Premiums. If Lender shall collect and Borrower shall pay in full Impounds for premiums in accordance with the provisions of Section 1.04 above, Borrower shall be deemed to have "paid" the premiums for the purposes of this Section 1.0B. in the event Borrower falls to provide, maintain, keep in force or deliver to Lender the policies of insurance required by this Security Instrument or by any Loan Document, Lender may (but shall have no obligation to) procure such insurance or single-Interest insurance for such risks covering Lender's interest, and Borrower will pay all premiums thereon and reimburse Lender for all amounts paid or incurred by Lender In connection therewith promptly upon demand by Lender, and until such payment is made by Borrower, the amount of all such premiums shall be added to the principal amount of the Loan and shall bear interest at the Default Rate.   1.09 casualties; Insurance and Condemnation Proceeds. In the event of a casualty or a taking by eminent domain, the following provisions shall apply in connection with the Restoration (defined below) of the Property:   (a) If the Property shall be damaged or destroyed, in whole or in part, by fire or other casualty, or if the Property or any portion thereof is taken in any condemnation or eminent domain proceeding, Borrower shall give prompt notice of such damage or taking to Lender and shall promptly commence and diligently prosecute the completion of the repair and restoration of the Property as nearly as possible to the condition of the Property was in immediately prior to such fire or other casualty or taking, with such alterations as may be approved by Lender (the 'Restoration").   -13­   Description: San Bernardino,CA Document-Year.DocID 2005.202586 Page: 14 of 58 Order: 327283 Comment: ------­       (b) The term "Net Proceeds' for purposes of this Section 1.09 shall mean: 0) the net amount of all insurance proceeds under the policies carried pursuant to Section 1.07 hereof as a result of such damage or destruction, after deduction of Lender's reasonable costs and expenses (including, without limitation, attorneys' fees), if any, in collecting the same, or (ii) the net amount of all awards and payments received by Lender with respect to a taking referenced in Section 1.17 hereof, after deduction of lender's reasonable costs and expenses including, without limitation, attorneys' fees), if any, In collecting the same, whichever the case may be. If (i) the Net Proceeds do not exceed $50,000 (the "Net Proceeds Availability Threshold”); (ii) the costs of completing the Restoration as reasonably estimated by Borrower shall be less than or equal to the Net Proceeds; (iii) no Event of Default exists under the Note, this Security Instrument or any of the other Loan Documents; (iv) the Property and the use thereof after the Restoration will be in compliance with, and permitted under, all applicable zoning laws, ordinances rules and regulations (Including, without limitation, laws relating to legal nonconforming structures or uses and all applicable Environmental Laws; (v) (A) if the Net Proceeds are insurance proceeds, less than twenty-five percent (25%) of the total floor area of the Improvements has been damaged or destroyed, or rendered unusable as a result of such fire or other casualty; or (9) if the Net Proceeds are condemnation awards, less than 25% of the Property is taken, such Property that is taken is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such Property, and such taking does not materially impair access to the Property; and (vi) Lender shall be satisfied that any operating deficits, including, without limitation, all scheduled payments of principal and interest under the Note which will be incurred with respect to the Property as a result of the occurrence of any such fire or other casualty or taking, whichever the case may be, will be covered out of (1) the Net Proceeds, or (2) other funds of Borrower. then the Net Proceeds will be disbursed directly to Borrower. (c) If the Net Proceeds are greater than the Net Proceeds Availability Threshold, such Net Proceeds shall, subject to the provisions of the leases that are superior to the lien of this Security Instrument or with respect to which subordination and non-disturbance agreements binding upon Lender have been entered Into and such subordination and non-disturbance agreements apply to the deposits of Net Proceeds, be forthwith paid to Lender to be held by lender in a segregated account to be made available to Borrower for the Restoration in accordance with the provisions of this Subsection 1.09(c). The Net Proceeds held by lender pursuant to Subsection 1.09(c) hereof shall be made available to Borrower for payment or reimbursement of Borrower's expenses in connection with the Restoration, subject to the following conditions:   (1) no Event of Default exists under the Note, this Security Instrument or any of the other Loan Documents;   (2) Lender shall, within a reasonable period of time prior to a request for an initial disbursement, be furnished with an estimate of the cost of the Restoration accompanied by an independent architect's opinion based on due professional investigation as to such costs and appropriate plans and specifications for the Restoration, such plans and specifications and cost estimates to be subject to Lender's approval, not to be unreasonably withheld or delayed;   (3) the Net Proceeds, together with any cash or cash equivalent deposited by Borrower with lender, are sufficient to cover the cost of the Restoration as such costs are certified by the independent architect;   (4) Net Proceeds are less than the outstanding principal balance of the Note;   (5) (A) If the Net Proceeds are Insurance proceeds, less than sixty percent (60%) of the total floor area of the Improvements has been damaged or destroyed, or rendered unusable as a result of such fire or other casually; or (B) if the Net Proceeds are condemnation awards, less than 25% of the Property Is taken, such Property that is taken is located along the perimeter or periphery of the Property, no portion of the Improvements is located on such Property and such taking does not materially impair access to the Property; -14­   Description: San Bernardino7 CA Document-Year.DocID 2005.202586 Page: ~5 of 58       (6) Lender shall be satisfied that any operating deficits, including, without limitation, all scheduled payments of principal and interest under the Note Which will be incurred with respect to the Property as a result of the· occurrence of any such fire or other casually or taking, whichever the case may be, will be covered out of (1) the Net Proceeds. or (2) other funds of Borrower;   (7) Lender shall be satisfied that. upon completion of the Restoration, the gross cash flow and the net cash flow of the Property will be restored to a level sufficient to cover all carrying costs and operating expenses of the Property, including, without limitation, debt service on the Note at a coverage ratio (after deducting all required reserves as required by Lender from net operating Income) of at leas11.55 to 1.0, which coverage ratio shall be determined by Lender on the basis of the Applicable Interest Rate (as defined in the NOTE);   (8) the Restoration can reasonably be completed on or before the earliest to occur of (A) six (6) months prior to the Maturity Date (defined in the Note), (B) the earliest date required for such completion under the terms of any Major Leases (defined below) and (C) such time as may be required under applicable zoning law, ordinance rule or regulation in order 10 repair and restore the Property to as nearly as possible the condition it was in immediately prior to such fire or other casualty or to such taking, as applicable;   (9) the Property and use thereof after the Restoration will be in compliance with, and permitted under, all applicable zoning laws, ordinances, rules and regulations including, without limitation, laws relating to legal nonconforming structures or uses and all applicable Environmental Laws; and   (10) each Major Lease in effect as of the date of the occurrence of such fire or other casualty shall remain In full force and effect during and after the completion of the Restoration without abatement of rent beyond the time required for Restoration. For purposes hereof, the term "Major Lease" shall mean (I) any Lease which (A) provides for rental Income representing ten percent (10%) or more of the total rental income for the Property, (B) covers ten percent (10%) or more of the total space at the Property, in the aggregate, or (C) provides for a lease term of more than ten (10) years Including options to renew and (ii) any instrument guaranteeing or providing credit support for any Major lease.   (d) The Net Proceeds held by lender until disbursed in accordance with the provisions of this Section 1.09 shall constitute additional security for the Secured Obligations. If Borrower is entitled to Net Proceeds pursuant to the terms hereof, the Net Proceeds (other than the Net Proceeds paid under the policy described in Section 1.07(a)(3) hereof for loss of rents or business interruption) shall be disbursed by Lender to, or as directed by, Borrower, In an amount equal to the costs actually incurred from time to time for work ( in place as part of the Restoration less customary retainage from time to time during the course of the Restoration, not more frequently than once per month, upon receipt of evidence satisfactory to Lender that (A) all materials installed and work ( and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (B) there exist no notices of pendency, stop orders, mechanic's or materialman's liens or notices of intention to file the same. or any other liens or encumbrances of any nature whatsoever on the Property arising out of the Restoration which have not either been fully bonded and discharged of record or in the alternative fully insured to the satisfaction of Lender by the title company Insuring the lien of this Security Instrument. The Net Proceeds paid under the policy described in Section 1.07(b)(3) shall be disbursed by Lender to pay for debt service under the Loan. to pay other expenses incurred by Borrower In connection with the ownership and operation of the Property, and the remainder thereof, to, or as directed by, Borrower to pay for the cost of the Restoration in accordance with this Section 1.09(d). Final payment shall be made after submission to lender of all licenses, permits, certificates of occupancy and other required approvals of governmental authorization having jurisdiction and Casualty Consultant's (defined below) certification that the Restoration has been fully completed.   (e) Lender shall have the use of the plans and specifications and all permits, licenses and approvals required or obtained in connection with the Restoration. The identity of the contractors, -15­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 16 of 58       subcontractors and materialmen engaged in the Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and acceptance by lender and an independent consulting engineer selected by Lender (the "casualty Consultant"), such acceptance not to be unreasonably withheld or delayed. All costs and expenses incurred by Lender in connection with making the Net Proceeds available for the Restoration, including, without limitation, attorneys' fees and disbursements and the casualty Consultant's fees, shall be paid by Borrower.   (f) If at any time the Net Proceeds or the undisbursed balance thereof shall not, in the reasonable opinion of Lender, be sufficient to pay in full the balance of the costs which are estimated by the casualty Consultant to be incurred in connection with the completion of the Restoration, Borrower shall deposit the deficiency in immediately available funds (the "Net Proceeds Deficiency") witl1lender before any further disbursement of the Net Proceeds shall be made. The Net Proceeds Deficiency deposited with Lender shall be held by Lender and shall be disbursed for costs actually incurred in connection with the Restoration on the same conditions applicable to the disbursement of the Net Proceeds, and until so disbursed pursuant to this Section 1.09 shall constitute additional security for the secured Obligations.   (g) Unless an Event of Default exists, Borrower shall settle any insurance claims with respect to the Net Proceeds which in the aggregate are less than the Net Proceeds Availability Threshold. Lender shall have the right to participate in and reasonably approve any settlement for Insurance claims with respect to the Net Proceeds which in the aggregate are greater than the Net Proceeds Availability Threshold. If an Event Of Default exists, Borrower hereby irrevocably empowers lender, at Lender's sale election, in the name of Borrower as its true and lawful attorney-in-fact, to file and prosecute such claims and to collect and to make receipt for any such payment. Notwithstanding the foregoing, lender's failure 10 file and prosecute any such claims shall not diminish or impair Lender's rights and remedies against Borrower under the Loan Documents. If the Net Proceeds are received by Borrower, such Net Proceeds shall, until the completion of the related work, be held in trust for Lender and shall be segregated from other funds of Borrower to be used to pay for the cost of the Restoration in accordance with the terms hereof.   (h) The excess, If any, of the Net Proceeds and the remaining balance, if any, of the Net Proceeds Deficiency deposited with Lender after (i) the Casualty Consultant certifies to Lender that the Restoration has been completed in accordance with the provisions of this Section 1.09, and (ii) the receipt by Lender of evidence satisfactory to lender that all costs incurred in connection with the Restoration have been paid in full and all required permits, licenses, certificates of occupancy and other required approvals of governmental authorities having jurisdiction have been issued, shall be remitted by Lender to Borrower, provided no Event of Default shall have occurred and shall be continuing under the Note, this Security Instrument or any of the other Loan Documents.   (I) All Net Proceeds not required (i) 10 be made available for the Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant to Subsection 1.09(h) hereof shall be retained and applied by Lender toward the payment of the secured Obligations whether or not then due and payable in such order, priority and proportions as Lender shall determine, without Prepayment Charge, or, at Lender's sole election, the same shall be paid, either in whole or in part, to Borrower. If lender shall receive and retain Net Proceeds, the lien of this Security Instrument shall be reduced only by the amount received and retained by Lender and actually applied by Lender in reduction of the Secured Obligations. BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT IT IS AWARE OF AND UNDERSTANDS SCHOOLCRAFT V. ROSS (81 CAL APP. 3D 75 (1981)) AND ITS PROGENY AS WELL AS CAUFORNIA CIVIL CODE SECTION 2924.7 AND CAUFORNIA FINANCIAL CODE SECTIONS 1227.3 AND 7462, WHICH PERMIT LENDER TO REQUIRE INSURANCE BUT OBLIGATE LENDER TO ALLOW BORROWER TO USE CASUALTY INSURANCE PROCEEDS FOR THE PURPOSE OF REPAIRING OR RESTORING THE REAL PROPERTY PLEDGED AS SECURITY FOR THE BORROWER'S OBUGATIONS TO LENDER UNLESS LENDER'S SECURITY HAS BEEN IMPAIRED. BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT, IN THE EVENT OF A   -16­   Description: San Bernardino,CA Document-Year.DooID 2005.202686 Page: ~7 of 58       CASUALTY TO THE PROPERTY, IF BORROWER FAILS TO REPAIR OR RESTORE THE PROPERTY IN A MANNER CONSISTENT WITH THE PROVISIONS OF THIS SECTION 1.09 ABOVE, REGAROLESS OF WHETHER SUCH FAILURE IS THE RESULT OF ANY VOLUNTARY ACTION OR INACTION BY BORROWER, OR ANY ACT OR DETERMINATION OF ANY GOVERNMENTAL AUTHORITY (WHETHER PURSUANT TO ANY ZONNG, LAND USE OR OTHER ORDINANCE, CODE, REGULATION OR REQUIREMENT OR OTHERWISE), SUCH FAILURE IS AND SHALL BE DEEMED A SUBSTANTIAL IMPAIRMENT OF THE PROPERTY ENTITLING LENDER TO APPLY THE NET INSURANCE PROCEEDS TO THE INDEBTEDNESS IN SUCH ORDER AND MANNER AS LENDER MAY ELECT, WHETHER OR NOT DUE AND PAYABLE, WITH ANY EXCESS PAID TO BORROWER. BY CAUSING THOSE PERSONS EXECUTING THIS SECURITY INSTRUMENT ON ITS BEHALF TO SEPARATELY INITIAL THIS PROVISION BY PLACING THEIR INITIALS BELOW THIS PROVISION IN THE SPACE PROVIDED BELOW, BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT THE TERMS OF THIS PROVISION HAVE BEEN SPECIFICALLY BARGAINED FOR AND ARE A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN AND WITHOUT WHICH LENDER WOULD NDT MAKE THE LOAN. INITIALS:~   a;:.,.   1.10 Assignment of Policies Upon Foreclosure. In the event of foreclosure of this Security Instrument or other transfer of title or assignment of the Property in extinguishment, in whole or in part, of the debt secured hereby, all right, title and interest of Borrower In and to all policies of insurance required by Section 1.07 hereof shall Inure to the benefit of and pass to the successor in interest to Borrower or the purchaser or grantee of the Property.   1.11 Indemnification; Subrogation; Waiver of Offset. (a) Notwithstanding any other provisions of this Security, Lender is not undertaking any obligations, nor shall Lender have any obligations, under the Leases; or with respect to agreements, contracts, certificates, instruments, franchises, permits, licenses and other items which are part of the Property. If Lender or Trustee is made a party to any litigation concerning the Note, this Security Instrument, any of the Loan Documents. the Property or any part thereof or interest therein, or the occupancy of the Property by Borrower, then Borrower shall Indemnify, defend and hold Lender and Trustee harmless from all liability by reason of said litigation, including, without limitation, attorneys' fees and expenses incurred by Lender or Trustee as a result of any such litigation, whether or not any such litigation is prosecuted to judgment. Lender and Trustee may employ an attorney or attorneys selected by It to protect Its rights hereunder, and Borrower shall pay to Lender and Trustee attorneys' fees and costs incurred by Lender and Trustee. (b) Borrower waives any and all right to claim or recover against Lender, Trustee, or their respective officers, employees, agents and representatives, for loss of or damage to Borrower, the Property, Borrowers property or the property of others under Borrower's control from any cause insured against or required to be insured against by the provisions of this Security Instrument   (c) All sums payable by Borrower pursuant to this Security Instrument or the Note shall be paid without notice, demand, counterclaim, setoff, deduction or defense and without abatement suspension, deferment, diminution or reduction, and the obligations and liabilities of Borrower hereunder shall in no way be released. discharged or otherwise affected (except as expressly provided herein) by reason of: (i) any damage to or destruction of or any condemnation or similar taking of the Property or any part thereof; 01) any restriction or prevention of or Interference by any third party with any use of the Property or any part thereof; (III) any title defect or encumbrance or any eviction from the Property, the Improvements or any part thereof by title paramount or otherwise; (Iv) any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other Bile proceeding relating to Lender, or any action taken with respect to this Security Instrument by any trustee or receiver of Lender, or by any court, in any such proceeding; (v) any claim which Borrower has or might have against Lender;   (vi) any default or failure on the part of Lender to perform or comply with any of the terms hereof or of any other agreement with Borrower; or (vii) any other occurrence whatsoever, whether similar or dissimilar to -17­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 18 of 58       the foregoing and whether or not Borrower shall have notice or knowledge of any of the foregoing. Except as expressly provided herein, Borrower waives all lights now or hereafter conferred by statute or otherwise to any abatement, suspension, deferment, diminution or reduction of any sum secured hereby and payable by Borrower.   1.12 Utilities. Borrower shall payor shall cause to be paid when due all utility charges which are incurred by Borrower for the benefit of the Property and all other assessments or charges of a similar nature, whether or not suoh charges are or may become liens thereon.   1.13 Actions Affecting Property. Borrower shall promptly give Lender written notice of, and shall appear in and contest, any action Dr proceeding purporting to affect the Property or any portion thereof or interest therein, or the security of this Security Instrument or the rights or powers of Lender or Trustee; and shall pay all costs and expenses, including, without limitation, the cost of evidence of title and attorneys' fees, in any such action or proceeding in which Lender or Trustee may appear.   1.14 Actions by Trustee or Lender to Preserve Property. If Borrower fails to make any payment or to do any act as and in the manner provided in any of the Loan Documents, Lender and/or Trustee, each at its own election, without obligation so to do, without releasing Borrower from any obligation, and without notice to or demand upon Borrower, may make or do the same in such manner and to such extent as either may deem necessary to protect the security hereof. In connection therewith (without limiting their general powers, whether conferred herein, in any other Loan Documents or by law), Lender and Trustee shall have and are hereby given the right, but not the obligation, (i) to enter upon and take possession of the Property; (ii) to make additions, alterations, repairs and improvements to the Property which they or either of them may consider necessary or proper to keep the Property in good condition and repair; (iii) To appear and participate in any action or proceeding affecting or which may affect the Property or any portion thereof or Interest therein, the security of this Security Instrument or the rights or powers of Lender or Trustee; (Iv) to pay, purchase, contest or compromise any encumbrance, claim, charge, lien or debt which in the judgment of either may affect or appears to affect the security of this Security Instrument or be prior or superior hereto; and (v) in exercising such powers, to pay necessary expenses, including, without limitation, attorneys' fees and costs or other necessary or desirable consultants. Borrower shall, immediately upon demand therefor by Lender and Trustee or either of them, pay to Lender and Trustee an amount equal to all respective costs and expenses incurred by such party In connection with the exercise of the foregoing rights, Including, without limitation, costs of evidence of title, court costs, appraisals, surveys and receiver's, trustee's and attorneys' fees and costs and expenses, together with interest thereon from the date of such expenditure al the Default Rate.   1.15 Transfers; Due On Sale/Encumbrance.   (a) Lender Reliance. Borrower acknowledges that Lender has examined and relied on the experience of Borrower or its general partners, managing partners, managing members, principals Of any direct or indirect legal or beneficial owner of Borrower In owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on Borrower's ownership of the Property as a means of maintaining the value of the Property as security for payment and performance of the Secured Obligations. Borrower acknowledges that Lender has a valid interest In maintaining the value of the Property so as to ensure that, should Borrower default in the payment or the performance of the Secured Obligations, Lender can recover the Secured Obligations by a sale of the Property.   (b) Transfer Definitions. For purposes of this Section 1.15, an "Affiliated Manager" shall mean any Property Manager In which Borrower, any Guarantor (as hereinafter defined) or any Indemnitor has, directly or indirectly, any legal, beneficial or economic interest; a "Restricted Party" shall mean Borrower, any Guarantor, any Indemnitor, or any Affiliated Manager or any shareholder, partner, member or non-member manager, or any direct or indirect legal or beneficial owner of Borrower, any Guarantor, any Indemnitor, any Affiliated Manager or any lien-member manager; a “Sale" shall mean a voluntary or involuntary sale, conveyance or transfer of a legal or beneficial Interest; and a "Pledge" shall mean a pledge of or grant of a security interest in a legal or beneficial Interest; the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or -18­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: ~9 of 58       activities of a person or entity, whether through ownership of voting securities, by contract, by operation of law, or otherwise.     (c) No Sale/Encumbrance.   (1) Except as is set forth below in Section 1.1S(d) with respect to Permitted Transfers (as hereinafter defined), Borrower shall not sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether Dr not for consideration or of record) the Property or any part thereof or any legal or beneficial interest therein or permit a Sale or Pledge of an interest in any Restricted Party (collectively a "Transfer”, without the prior written consent of Lender, which consent may be withheld at Lender's sole election, regardless of whether the conditions set forth in Subsection 1.15(e) hereof have been satisfied, without limiting the foregoing, there shall be no subordinate financing placed on any portion of the Property.   (2) A Transfer shall include, without limitation: (i) an installment sales agreement wherein Borrower agrees to sell the Property or any part thereof for a price to be paid in installments; (ii) an agreement by Borrower leasing all or a substantial part of the property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower's right, sale and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation, Sale or Pledge of such corporation's stock or the creation or issuance of new stock in such corporation; (IV) if a Restricted Party is a limited Dr general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of any general partner or joint venturer, or the Sale or Pledge of the partnership Interest of any limited partner, general partner or joint venturer, or the Sale or Pledge of any profits or proceeds relating to such partnership interest, or the creation or issuance of new partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of any managing member or non-member manager (or If no managing member or non-member manager, any member) or the sale or Pledge of the membership interest of any member or any profits or proceeds relating to such membership interest, or the creation 'or issuance of new membership interests; (vi) If a Restricted Party is a trust or nominee trust, any merger or consolidation or the Sale or Pledge of the legal or beneficial interests in such Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of the Property Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 1.02 hereof; and (viii) without limitation to the foregoing, any Sale or Pledge by any person or entity which directly or indirectly controls Borrower of its direct or indirect controlling interest in Borrower.   (d) Permitted Transfers.   (1) Notwithstanding the provisions of Sections 1.15(b) and (e) hereof, the following transfers shall not be deemed to be a Transfer: (i) transfers by devise or descent or by operation of law upon the death of a member, partner or shareholder of a Restricted Party; (ii) the Sale, in one or a series of transactions, of not more than forty-nine percent (49%) of the stock in a Restricted Party; (iii) the Sale, in one or a series of transactions, of not more than forty-nine percent (49%) of the limited partnership interests or non-managing membership interests, as the case may be, in a Restricted Party; (iv) inter vivos and testamentary transfers of the legal or beneficial interests (including, without limitation, stock, partnership interests and membership interests) in a Restricted Party (A) to an existing owner of a legal or beneficial interest including, without limitation, a shareholder, limited partner, general partner, joint venturer or member} in such Restricted Party on the date hereof (an "Existing Owner”, (B) to a lineal descendant or spouse of an Existing Owner, (C) to a trust, the beneficiary of which is (and so long as any part of the Loan remains unpaid continues to be) an Existing Owner or a lineal descendant or spouse of an Existing Owner, or (D) to a corporation, limited or general partnership, limited liability company or other legal enemy which Is (and so long as any part of the Loan remains unpaid continues to be wholly owned and controlled by an Existing Owner; and (v) pursuant to Leases for which Lender's consent is not required in accordance with the provisions of Section 1.26 (b) hereof; Notwithstanding the introductory clause of this paragraph, the transfers described in clauses (i) through (iv) inclusive of this paragraph -19­   Desar£ption: San Ber.nardino,~ Document-Year.DocID 2005.202686 Page: 20 of 58       (collectively, "Permitted Transfers") shall be subject to lender's prior written consent, which consent Lender shall provide upon satisfaction of the conditions set forth in Subsection 1.15(e) hereof. (e) Conditions Precedent. Lender's consent to any Transfer/Permitted Transfer. regardless of whether Lender has consented to any previous Transfer/Permitted Transfer, is subject to satisfaction of the following conditions precedent:   (1) Lender shall have received at least thirty (30) days prior written notice of the Transfer/Permitted Transfer, together with copies of such documents and information relating to the Transfer/Permitted Transfer as Lender may request, including, without limitation, the Sale documents (including, without limitation, purchase/sale agreement, If any), the terms and structure of the Sale and the nature and structure of the Sale (including, without limitation, debt/equity structure, if any).   (2) the Transfer/Permitted Transfer shall not result In a change In the control of any Restricted Party or a change In the control or management of the Borrower and the Property, or, in the alternative, the person{s) or entity(ies) proposed to assume control of such Restricted Party and the person(s) or entity(ies) proposed to assume control and management of the Borrower and the Property shall be acceptable to Lender In all respects (Including, without limitation, financial condition, credit history and management ability/experience and other relevant criteria, all as determined by Lender);   (3) the Transfer/Permitted Transfer shall not release any Guarantor or Indemnitor or their respective estates from their respective obligations under the Loan Documents;   (4) the Transfer/Permitted Transfer shall not release the Borrower from Hs obligations under the Note, this Security Instrument, or any other Loan Documents;   (5) the Transfer/Permitted Transfer shall not have any adverse effect either on the Borrower's compliance with the provisions of this Security Instrument, including, without limitation, Section 1.29 (captioned "Single Purpose Entity") and Section 1.30 (captioned "ERISA") hereof, or on the Borrower's status as a continuing legal entity liable for the payment and performance of the Secured Obligations; (6) Borrower shall pay all of Lender's costs and expenses, including, without limitation, attorneys' fees and costs, and title insurance costs (if any).   (f) Lender's Rights. Lender reserves the right to condition any consent required hereunder upon a modification of the terms hereof (excludin9 a modification of the interest rate, amortization term, maturity date, or payment schedule) and on an assumption of the Note, this Security Instrument and the other Loan Documents as so modified in connection with the proposed Transfer, payment of an assumption fee (except with respect 10 Permitted Transfers) of one percent (1 %) of the principal balance of the Note (the "Assumption Fee"), payment of a $2,000.00 processing fee (the 'Processing Fee"), payment of expenses incurred by Lender (Including attorneys' fees) In connection with any proposed Transfer (the "Transfer Expenses"), the approval by a Rating Agency (defined below) of the proposed transferee, and such other conditions and legal opinions as Lender shall determine to be in the interest of Lender. If the holder of the Note shall be a "real estate mortgage investment conduit" or "REMIC' (as such terms are defined in Section 8600 of the United States Internal Revenue Code, as amended, and any related United States Treasury Department regulations) (the "REMIC Trust"), such opinions shall include, without limitation, an opinion of counsel In form and substance satisfactory to Lender, from counsel approved by Lender, stating that the tax qualification and status of the REMIC Trust as a REMIC will not be adversely affected or impaired as a result of such modification or assumption. The Transfer Expenses and the processing Fee shall be payable by Borrower whether or not Lender consents to the Transfer. Lender shall not be required to demonstrate any actual impairment of its security Dr any increased risk of default hereunder in order to declare the Secured Obligations immediately due and payable upon a Transfer without Lender's consent. Any Transfer made in contravention of this Section 1.15 shall be null and void and of no force and effect. The provisions of this Section 1.15 shall apply to   -20­   Descr£pt£on: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 2~ of 58       every Transfer regardless of whether voluntary or no~ or whether or not Lender has consented to any previous Transfer.   (g) Assumption and Release. Provided that no event of Default shall have occurred and shall be continuing, Lender shall consent to a sale of the Property and assumption of the Loan by the purchaser (transferee) and the release of Borrower from liability under the Loan, except for any liability arising or accruing prior to the closing of said assumption, upon (1) Borrower's completion of an assumption application in such form as Lender may require from time to time, (2) Lender’s review and approval, which approval shall not be. unreasonably withheld, of the creditworthiness and other qualifications of the proposed transferees (including, without Iimitation, the development, business or management expertise of the proposed transferee, if deemed relevant under the circumstances by Lender in its good faith judgment) under Lenders underwriting criteria at the time 01 said assumption, (3) the execution by the transferee of an assumption agreement in such form as Lender may require from time to time, and (4) payment to Lender of the Assumption Fee, the Processing Fee and the Transfer Expenses. In addition, in connection with said assumption, but subject to all of the conditions referred to above in this Subsection 1.15(g), Lender shall consent to the release of the Guarantor and Indemnitor, except for any liability arising or accruing prior to the dosing of said assumption, provided that Lender approves in writing substitute guarantor(s)/Indemnitor(s) acceptable to Lender in Its sole discretion in terms of creditworthiness and other qualifications under Lender's underwriting criteria at the time of said assumption, and further provided that such substitute guarantor(s)/indemnitor (s) execute guaranties and/or indemnities In form and content acceptable to Lender.   BY CAUSING THOSE PERSONS EXECUTING THIS SECURITY INSTRUMENT ON ITS BEHALF TO SEPARATELY INITIAL THIS PROVISION BY PLACING THEIR INITIALS BELOW THIS PROVISION IN THE SPACE PROVIDED BELOW, BORROWER ACKNOWLEDGES AND WARRANTS THAT IT HAS READ AND UNDERSTOOD THE PROVISIONS OF THIS SECTION 1.15 AND INITIALS THIS SECTION 1.15 AS PROOF OF THIS STATEMENT.   INITIALS::___   (h) Permitted "Soft Second" Debt. Notwithstanding anything to the contrary contained in Sections 1.15 or 1.29 hereof, Lender shall consent to Borrower incurring so called soft second", (I.e., unsecured and subordinate) debt (the "Junior “), in accordance with the terms and conditions of the governing organizational documents to the Borrower (the "Entity Documents") to the Junior Lender (defined below), provided that no Event of Default has occurred and is continuing, and further provided that, all of the foIlo11ring additional terms and conditions are satisfied:   (1) Borrower shall pay Lender aft costs and expenses incurred In connection with the Junior Debt including, without limitation, reasonable attorneys' fees, costs and expenses and the customary fees of the Rating Agencies [defined below! in connection with any Rating Agency Confirmation [defined below]); "Rating Agencies" shall mean, prior to Securitization (defined below), Fitch, Inc., Moody's Investors Service, Inc., Standard & Poor’s Ratings Services, or any other nationally· recognized rating agency designated by Lender, and after Securitization, shall mean any of the foregoing that have rated any Securities (as defined In Section 4.01 hereof); "Securitization" means the sale or securitization of the Loan (or any portion thereof) in one or more transactions through the issuance of Securities; "Rating Agency Confirmation" means that each of the Rating Agencies shall have confirmed in writing that the occurrence 01 the event for which such Rating Agency Confirmation is sought shall not result in a downgrade, qualification or withdrawal 01 the applicable rating or ratings ascribed by the applicable Rating Agencies to any of the Securities then outstanding, which confirmation may be granted or denied by the Rating Agencies in their sole discretion; further, in the event that no Securities are outstanding or the Loan is not part of a Securitization, "Rating Agency Confirmation" means that Lender shall have given its prior written consent to any action that would otherwise require a Rating Agency Confirmation, which consent shall not be unreasonably withheld;   (2) The "Junior Lender" shall be DOWNEY SAVINGS & LOAN ASSOCIATION, FA, a Federal association; ·21­   Description: San BernardinorCA Document-Year.DocID 2005.202586 Page: 22 of 58 Order: 327283 Co.mment:       (3) The Junior Debt shall in all respects be subject, subordinate and Inferior In lien, right and claim to all liens securing the Secured Obligations, including but not limited to the lien of the Security Instrument, whether present or future rights, and to the rights of all tenants of the Property;   (4) The Guarantor under the Limited Recourse Obligations Guaranty, of even date herewith executed in connection with the Loan, and the Indemnitors under the Environmental Indemnification Agreement of even date herewith executed in connection with the Loan, shall have unconditionally and irrevocably consented to the Junior Debt in writing(s) delivered to Lender;   (5) Upon Lender's request, the Junior Lender shall execute and deliver to Lender a Subordination Agreement In form and substance acceptable to Lender;   (6) Junior Lender or Borrower shall provide Lender with written notice of any defaults under the Junior Debt together with an opportunity to cure such defaults at the sole option of Lender;   (T) Actual payments of the payments due under the Junior Debt Documents (defined below) shall not cause or result In an Event of Default under the loan Documents or an event which, with the giving of notice and or the expiration any applicable cure period, would constitute an Event of Default under the Loan Documents, and such actual payments shall be made solely from excess cash now of the Borrower, and there shall be no outstanding trade debt or other obligation of the Borrower then existing which are unpaid, excepting those which are not past due and for which Borrower has set aside sufficient working capital reserve   (8) Evidence of the satisfaction of any conditions that lender may reasonably establish to comply w~h any applicable Securitization requirements; and (9) The documents (if any) proposed for evidencing the Junior Debt (collectively, the •Junior Debt Documents") shall be delivered to the Lender for its approval, and the Junior Debt Documents shall be in form and substance acceptable to Lender, and lender's consent to the Junior Debt and the Junior Debt Documents [If any) shall be subject to the following terms and conditions: (i) The indebtedness secured by the Junior Debt shall in no event exceed the amount which would result in a [combined] loan-to-value ratio (as determined by Lender) based on a then-current appraisal acceptable to lender for the Total Financing of greater than .60 to 1.00, and further the principal amount of the loan secured by the Junior Debt shall in no event exceed the amount which would result in a [combined} debt service coverage ratio (as determined by Lender for the Total Financing of less than 1.45 to 1.00; as used herein, "Total Financing" shall mean the combined/aggregate of the Loan and the loan secured by the Junior Debt;   (ii) The loan secured by the Junior Debt shall be non-recourse as to the Guarantors and Indemnitors referred to In Section 1.15(h)(5) above;   (iii) The maturity date of the loan secured by the Junior Debt shall be on or after March 11. 2017; and   (iv) Documents shall not adversely affect. directly or Indirectly, expressly or Implicitly, the bankruptcy remote structure of Borrower.   Lender's approval of the Junior Debt shall not be deemed to be a waiver of any of the terms and conditions of Section 1.15 hereof, including without limitation the requirement of Lander's consent, with respect to any other Transfers.   1.16 Survival of Warranties. Notwithstanding any investigation of the Property, Borrower. Guarantor or Indemnitor by Lender, Borrower acknowledges: (a) that in accepting the Note, this Security   ·22·   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 23 of 58         Instrument and the other loan Documents, lender is expressly and primarily relying on the truth and accuracy of the representations, warranties and covenants of Borrower, Guarantor and Indemnitor contained in any loan application {a "Loan Application” or made to Lender in connection with the Loan or contained in the Loan Documents or Incorporated by reference therein (the "Warranties”; (b) that such reliance existed on the part of Lender prior to the date hereof; (e) that the Warranties are a material inducement to Lender in making the loan; and (d) that Lender would not make the Loan in the absence of the Warranties. All Warranties shall survive the execution and delivery of this Security Instrument and shall remain continuing obligations, representations, warranties and covenants of Borrower so long as any portion of the Secured Obligations remain outstanding.   1.17 Eminent Domain; Condemnation. Borrower shall promptly give lender notice of the actual or threatened commencement of any condemnation or eminent domain proceeding and shall deliver to Lender copies of any and all papers served in connection with such proceedings. Notwithstanding any taking by any public or quasi-public authority through eminent domain or otherwise (including, without limitation, any transfer made in Debt of or in anticipation of the exercise of such taking), Borrower shall continue to pay the Secured Obligations at the time and in the manner provided for its payment in the Note and in this Security Instrument and the Secured Obligations shall not be reduced until any award or payment therefor shall have been actually received and applied by Lender, after the deduction of expenses of collection, to the reduction or discharge of the Secured Obligations. Lender shall not be entitled to the interest paid on the award by the condemning authority but shall be entitled to receive out of the award Interest at the rate or rates provided in the Note. Borrower shall cause the award or payment made in any condemnation or eminent domain proceeding, which is payable to Borrower, to be applied In accordance with Section 1.09 hereof. In the event Borrower is not entitled to any award or payment pursuant to Section 1.09 hereof, Borrower shall cause the award or payment to be paid directly to lender. Lender may apply the award or payment to the reduction or discharge of the Secured Obligations whether or not then due and payable. If the Property Is sold, through foreclosure or otherwise, prior to the receipt by Lender of the award or payment, lender shall have the right, whether or not a deficiency judgment on the Note (to the extent permitted In the Note or herein) shall have been sought, recovered or denied, to receive the award or payment, or a portion thereof sufficient to pay the Secured Obligations. If in the event of a total condemnation the award or payment is not sufficient to repay the Note in full, Borrower shall immediately pay any remaining balance, together with all accrued interest thereon. Nothing herein shall be construed to cure or waive any Event of Default or notice of default hereunder or under any other Loan Document or Invalidate any act done pursuant to such notice.   1.18 Additional Security. No other security now existing, or hereafter taken, to secure the Secured Obligations shall be impaired or affected by the execution of this Security Instrument and all additional security shall be taken, considered and held as cumulative. The taking of additional security, execution of partial releases of the security, or any extension of the time of payment of the Secured Obligations shall not diminish the force, effect or lien of this Security Instrument and shall not affect or impair the liability of any maker, surety or endorser for the payment of the Secured Obligations. In the event lender at any time holds additional security for any of the Secured Obligations, it may enforce the sale thereof or otherwise realize upon the same, at its option, either before, concurrently, or after a sale is made hereunder.   1.19 Property Use. The Property shall be used only for retail use and for no other use without the prior written consent of Lender.   1.20 Successors and Assigns. Without in any way limiting or affecting the provisions of Section 1.15 hereof, this Security instrument applies to, inures to the benefit of and binds all parties hereto and their respective heirs, legatees, devisees. administrators, executors, successors and assigns. The term "Lender" shall mean the owner and holder of the Note, whether or not named as Lender herein. In exercising any rights hereunder or taking any actions provided for herein, Lender may act through its employees, agents, independent contractors or servicers authorized by lender.   1.21 Inspections. Lender, or its agents, representatives or employees, are authorized to enter at any reasonable time (and with due regard for rights of tenants) upon or in any part of the Property   ·23­   Description: San Ber.nardino,CA Doaument-Year.DocID 2005.202586 Page: 24 of 58       for the purpose of inspecting the same and for the purpose of performing any of the acts Lender is authorized to perform hereunder or under the terms of any of the Loan Documents. Without limiting the generality of the foregoing, Lender shall have the same right power and authority to enter and inspect the Property, and the right to appoint a receiver on an ex parte basis, to enforce this right to enter and inspect the Property.   1.22 [RESERVED.]   1.23 Lender's Powers. Without affecting the liability of any other person liable for the payment of any obligations herein mentioned, and without affecting the lien or charge of this Security Instrument upon any portion of the Property not then or theretofore released as security for the full amount of all unpaid obligations, Lender may, from time to time and without notice (i) release any person so liable, (ii) extend the maturity or alter any of the terms of any such obligation, (iii) grant other indulgences, (IV) release or reconvey, or cause to be released or reconveyed at any time at Lender's option any parcel, portion or all of the Property, (v) take or release any other or additional security for any obligation herein mentioned, or (vi) make other arrangements with debtors in relation thereto.   1.24 Books and Records; Financial Statements.   (a) Borrower, any Guarantor and any Indemnitor shall keep (and Borrower shall cause any Guarantor and any Indemnitor to keep) adequate books and records of account in accordance with generally accepted accounting principles ("GAAP,,), or in accordance with other methods acceptable to Lender, consistently applied and furnish to Lender:   (1) quarterly and annual (or, if requested by Lender and the Loan has not yet been securitized or sold as a whole loan, monthly) certified rent rolls signed and dated by Borrower, deterring the names of all tenants of the Improvements, the portion of Improvements occupied by each tenant, the base rent and any other charges payable under each Lease and the term of each Lease, including the expiration date, the extent to which any tenant is in default under any Lease, and any other information as is reasonably required by Lender, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or sixty (60) days after the close of each fiscal year of Borrower, as applicable;   (2) quarterly and annual (or If requested by Lender and the Loan has not yet been securitized or sold as a whole loan, monthly) operating statements of the Property, prepared and certified by Borrower in the form required by Lender, detailing the revenues received. the expenses incurred and the net operating Income before and after debt service (principal and interest) and major capital improvements for each month and containing appropriate year to date information, within twenty (20) days after the end of each calendar month, thirty (30) days after the end of each fiscal quarter or sixty (60) days after the close of each fiscal year of Borrower, as applicable;   (3) annual (or If requested by Lender and the Loan has not yet been securitized or sold as a whole Loan, quarterly) balance sheets and profit and loss statements of Borrower, any Guarantor and any Indemnitor in the form required by Lender, prepared and certified by the respective Borrower, Guarantor and Indemnitor; and   (4) an annual operating budget presented on a monthly basis consistent with the annual operating statement described above for the Property, including cash flow projections for the upcoming year, and all proposed capital replacements and improvements at least fifteen (15) days prior to the start of each fiscal year.   (5) Borrower shall use its best efforts to obtain and furnish to Lender gross annual sales and sales per square foot information for tenants of the Property designated by Lender. Further, with respect to Leases under which the tenants are obligated to provide financial or sales statements/information to Borrower, as landlord under such Leases, Borrower agrees to promptly provide -24­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 25 of 58 Order: 327283 Commen t:       upon Lender's request all of the statements/information such tenants are obligated to provide to Borrower pursuant to the Lease, provided that the provisions of such Leases or any Subordination Non-Disturbance and Attornment Agreement executed by such tenants in connection with the Loan allow or authorize such statements/information to be provided to Lender or any first lienholder/mortgagee of the Property. (b) Upon request from Lender, Borrower, any Guarantor and any Indemnitor shall furnish (and Borrower shall cause any Guarantor and any Indemnitor to furnish) in a timely manner to Lender.   (1) If the Property is used for multi-family residential use, a property management report for the Property, showing the number of inquiries made and/or rental applications received from tenants or prospective tenants and deposits received from tenants and any other information requested by Lender, in reasonable detail and certified by Borrower (or an Officer, general partner, member or principal of Borrower If Borrower is not an individual) to be true and complete, but no more frequently than quarterly; and   (2) an accounting of all security deposits held in connection with any Lease of any part of the Property, including the name and identification number of the accounts in which such security deposits are held, the name and address of the financial institutions in which such security deposits are held and the name of the person to contact at such financial institution, along with any authority or release necessary for Lender to obtain information regarding such accounts directly from such financial institutions.   (c) Borrower, any Guarantor and any Indemnitor shall furnish (and Borrower shall cause any Guarantor and any Indemnitor to furnish) Lender with such other additional financial or management information (including, without limitation, state and federal tax returns) as may, from time to time, be reasonably required by lender in form and substance satisfactory to Lender.   (d) Borrower, any Guarantor and any Indemnitor shall furnish (and Borrower shall cause any Guarantor and any Indemnitor to furnish) to Lender and its agents convenient facilities for the examination and audit of any such books and records.   (e) Borrower shall pay a late fee of $500 to Lender each time Borrower fails to deliver the required financial documents set forth above within the time set forth above, if such delivery delinquency continues for ten (10) days after written notice thereof. 1.25 Borrower Name(s); Matters Affecting Financing Statement Filings. At the request of Lender, Borrower shall execute a certificate in form satisfactory to Lender listing the trade-names or fictitious business names under which Borrower intends to operate the Property or any business located thereon and representing and warranting that Borrower does business under no other trade names or fictitious business names with respect to the Property. Borrower will not change any of the following without notifying the lender of such change in writing at least thirty (30) days prior to the effective date of such change and without first obtaining the prior written consent of the Lender:   (a) Borrower's name or identity including, without limitation, its trade name or names); (b) If Borrower Is an Individual, Borrower's principal residence; (c) If Borrower is an organization, Borrower's corporate, partnership or other structure; (d) If Borrower is an organization, Borrower's jurisdiction of organization (i.e., the jurisdiction, or state, under whose law the Borrower is organized); or (e) If Borrower is an organization, Borrower's place of business [If Borrower has only one place of business) or Borrower's chief executive office of Borrower has more than one place of business).   -25­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 26 of 58       upon any change in the matters referred to above Of permitted hereunder), Borrower will, upon request of Lender, execute any financing statement amendments, additional financing statements and other documents required by Lender to reflect such change. 1.26 Leaseholds.   (a) Space Leases. Borrower shall deliver to Lender a signed copy of all Leases (other than residential Leases) with respect to the Property or executed counterparts thereof, now existing or hereafter made from time to time, within thirty (30) days of signing, affecting all or any part of the Property, and except as is set forth herein, all Leases now or hereafter entered Into with respect to the Property shall be in form and substance subject to the approval of Lender. Borrower shall not, without Lender's prior written consent, execute, modify, surrender or terminate any Lease now existing or hereafter made affecting all or any part of the Property; provided, however, that Borrower may enter into Leases affecting the Property without Lender's consent if such Leases (i) provide for a term of no less than three (3) years and no more than seven (7) years and at least a market rental rate for comparable properties in the geographic area of the Property (as determined by Lender); (ii) have been negotiated at arms length with a bona fide Independent,   third·party tenant; (iii) demise not more than fifteen (15%) percent of the lesser of gross square footage of, or total Income generated by, the Improvements; (iv) do not contain material modifications from the standard form of Lease previously approved by Lender; (v) do not change the use of the Property In effect. at the time the Loan was made; {vi) do not have a materially adverse effect on the value of the Property taken as a whole; and (vii) are subject and subordinate to this Security Instrument and the lessees thereunder agree to attorn to Lender. If the Property is multifamily, self-storage, or mobile home park, the prior consent of Lender shall not be required in connection with the making, modification or termination of Leases in the ordinary course of business and In the exercise of Borrower's prudent business judgment, provided 0) the term of such Leases (including any renewal or extension term) shall be no less than six (6) months and no more than eighteen (18) months and (ii) the rental rate for such Leases shall be at least a market rental .rate for comparable properties in the geographic area of the Property. Borrower shall pay a late fee of $500 to Lender each time Borrower fails to deliver the required documents set forth above within the time set forth above, if such delivery delinquency continues for ten (10) days after written notice thereof.   1.27 Indemnity. In addition to any other indemnities to Lender specifically provided for in this Security Instrument, Borrower hereby indemnifies and saves Lender and its authorized representative harmless from and against any and all losses, liabilities, suits, obligations, fines, damages, penalties, claims, costs, charges and expenses, including, without limitation, architects', engineers' and attorneys' fees and all disbursements which may be imposed upon, incurred or asserted against Lender and its authorized representative by reason of: (i) the construction of any Improvements, (ii) any capital improvements, other work or things done in, on or about the Property or any part thereof, (iii) any use, nonuse, misuse, possession, occupation, alteration, operation, maintenance or management of the Property or any part thereof or any street, drive, sidewalk, curb, passageway or space comprising a part thereof or adjacent thereto, (iv) any negligence or willful act or omission on the part of Borrower and its agents, contractors, servants, employees, licensees or invitees, (v) any accident, injury including, without limitation, death) or damage to any person or property occurring In. on or about the Property or any part thereof, (vi) any lien or claim which may be alleged to have arisen on or against the Property or any part thereof under the laws of the local or state government or any other governmental or quasi governmental authority or any liability asserted against Lender with respect thereto, (vii) any tax attributable to the execution, delivery, ruing or recording of this Security Instrument or the Note, (viii) any contest due to Borrower's actions or failure to act, permitted pursuant to the provisions of this Security Instrument, (ix) any default under the Note or this Security Instrument, (x) any claim by or liability to any contractor or subcontractor perfol111ing work or any party supplying materials In connection with the Property, (xi) any and all claims and demands whatsoever which may be asserted against Lender by reason of any alleged obligations or undertaking on its part to perform or discharge any of the terms, covenants, or agreements contained In any Lease; or (xii) the payment of any commission, charge or brokerage fee to anyone which may be payable in connection with the funding of the loan .   •26­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 27 of 58       1.28 Representations and Warranties. Borrower covenants, represents and warrants with and to Trustee and Lender that: (a) Borrower Organization. Borrower is duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, and Borrower is duly qualified to transact business and holds all licenses, registrations or other approvals (or is otherwise exempt), in each other jurisdiction in which the conduct of Borrower's business requires such qualification, licenses, registrations or other approvals. Borrower will continuously maintain its existence and good standing (ff applicable) under the laws of the Jurisdiction of its organization or formation, and Borrower will continuously maintain its qualification to transact business and all licenses, registrations or other approvals (unless otherwise exempt), in each other jurisdiction in which the conduct of Borrowers business requires such qualification, licenses, registrations or other approvals.   (b) Borrower Authority. Borrower has all requisite power and authority to enter into the Loan and to execute and deliver the Loan Documents, and to perform all of the obligations required of Borrower thereunder. Borrower is not required to make any filing with, or to obtain any permit, authorization, consent or approval of, any person or entity as a condition to Borrower's entering into the Loan, executing and delivering the Note, this Security Instrument, or any other Loan Documents, or performing all of the obligations required of Borrower thereunder, or if any such required permit, authorization, consent or approval Is required, it has been obtained.   (c) Validity of Documents. The execution and delivery by Borrower of the Note, this Security Instrument and other Loan Documents, and the performance by Borrower of its obligations thereunder, do not violate any prohibition contained In, conflict with, result in a breach of, give rise to any right of termination, cancellation or acceleration under. constitute a default under, or require any additional approval under (i) Borrower's partnership agreement or any other organizational or constituent document or instrument pursuant to which Borrower was formed or by which Borrowers operations are governed; (ii) any material instrument or agreement to which Borrower is a part or by which Borrower is bound or that affects the Property; or (iii) any law, rule, regulation, ordinance, order, injunction or decree application to Borrower or to the Property or any portion thereof.   (d) Warranty of Title. Borrower hereby fully warrants the title to the. Property and will defend the same and the validity and priority of the lien and encumbrance of this Security Instrument against the lawful claims of all persons whomsoever;   (e) No Liens or Transfers. Borrower has not obtained, or agreed to obtain, any loan from any person which could result In the creation of a lien upon the Property, or any part thereof, to secure prepayment thereof, except for the lien of the Loan. The Property is free and clear of all liens and encumbrances of any kind, nature or description, save and except only for those matters set forth in a schedule of exceptions to coverage in the title insurance policy approved by Lender and insuring Lender's Interest in the Property. Further, Borrower has not made or permitted any transfer Including, without limitation, a Transfer) which will or could result in subordinate financing being placed on any portion of the Property, and there is no outstanding Sale or Pledge of an Interest in a Restricted Party.   (f) Litigation. There is not pending against Borrower (or any partner of Borrower, if and to the extent applicable) any petition in bankruptcy, whether voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization, liquidation or arrangement under the bankruptcy laws of the United States or of any State thereof, or any other action brought under the aforementioned bankruptcy laws; and, except as disclosed in the due diligence searches obtained by Lender in connection with the closing of the Loan, there is no action, suit, proceeding or investigation pending or, to Borrower's knowledge, threatened, in any court or before any governmental agency (including, without limitation, condemnation proceedings) involving Borrower (or partner of Borrower, n and to the extent applicable) or the Property or any portion thereof, including, without limitation, any action which would draw into question the validity of the Loan or of Borrower's obligations under the terms of the Note, this Security Instrument and any other Loan Document (g) Status of Property.   -27­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 28 of 58       (1) No portion of the Improvements is located in an area identified by the Secretary of Housing and Urban Development or any successor thereto as an area having special flood hazards pursuant to the Flood Insurance Acts or, if any portion of the Improvements is located within such area, Borrower has obtained and will maintain the flood insurance described In Section 1.07 hereof.   (2) The Property and the present and contemplated use and occupancy thereof are in substantial compliance with all applicable zoning ordinances, building codes, land use and Environmental Laws and other similar laws. Without limiting the foregoing, the Property is in substantial compliance with the Americans with Disabilities Act of 1990 and all of the regulations promulgated thereunder. The Land constitutes one or more separate tax lots and one or more separate legal lots In compliance with all applicable subdivision regulations.   (3) All necessary certificates, licenses and other approvals, governmental and otherwise, necessary for the operation of the Property and the conduct of its business and all required zoning, building code, land use, environmental and other similar permits or approvals, are in full force and effect as of the date hereof and not subject to revocation, suspension, forfeiture or modification.   (4) The Property is served by all utilities required for the current or contemplated use thereof, and all utility service is provided by public utilities and the Property has accepted or is equipped to accept such utility service. (5) All public roads and streets necessary for service of and access to the Property for the current or contemplated use thereof have been completed, are serviceable and all-weather and are physically and legally open for use by the public.   (6) The Property is served by public water and sewer systems.   (7) The Property is free from material damage by any cause whatsoever, and any and all repairs required by Lender have been completed.   (8) All costs and expenses of any and all labor, materials, supplies and equipment used in the construction ofthe Improvements have been paid In full.   (9) Borrower has paid in full for, and Is the owner of, all furnishings, fixtures and equipment (other than tenants' property) used In connection with the operation of the Property, free and clear of any and all security Inlerests, liens or encumbrances, except the lien and security interest created hereby. (10) All liquid and solid waste disposal, septic and sewer systems located on the Property are in a good and safe condition and repair and in compliance with all applicable laws.   (11) All the Improvements lie within the boundaries of the Land.   (h) No Foreign Person. Borrower is not a "foreign person", "foreign corporation", "foreign partnership·, "foreign trust" or "foreign estate" or other foreign entity as those terms are defined in Section 1445 of the United states Internal Revenue Code, as amended, and the related United States Treasury Department regulations.   (I) Separate Tax Lot. The Land is assessed for real estate lax purposes as one or more wholly independent tax lot or lots, separate from any adjoining land or improvements not constituting a part of such lot or lots, and no other land or Improvements are assessed and taxed together With the Land or any portion thereof.   (j) Financial Condition. Borrower is solvent, and no bankruptcy, reorganization, insolvency or similar proceeding under any state or federal law with respect to Borrower has been initiated. No -28­   Desaript~on: San Bernardino,CA Doaument-Year.DocID 2005.202686 Page: 29 of 58       petition in bankruptcy has ever been filed by or against Borrower, any Guarantor, or any related entity, or any principal, general partner or member thereof, in the last seven (7) years, and neither Borrower, any Guarantor nor any related entity, or any principal, general partner or member thereof, in the last seven (7) years has ever made any assignment for the benefit of creditors or taken advantage of any insolvency act or any act for the benefit of debtors. All Information In all financial statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan are accurate, complete and correct In all material respects. There has been no adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, Incomplete or otherwise misleading.   (k) Business Purposes. The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes.   (I) Taxes. Borrower and any guarantor of the Loan have filed all federal, state, county, municipal, and city income and other tax returns required to have been filed by them and have paid all taxes and related liabilities which have become due pursuant to such returns or pursuant to any assessments received by them. Neither Borrower nor any guarantor of the Loan knows of any basis for any additional assessment In respect of any such taxes and related liabilities for prior years.   (m) No Change In Facts or Circumstances. All Information in all financing statements, rent rolls, reports, certificates and other documents submitted in connection with the Loan are accurate, complete and correct in all respects. There has been no adverse change in any condition, fact, circumstance or event that would make any such information inaccurate, incomplete or otherwise misleading.   (n) Disclosure. Borrower has disclosed 10 Lender all material facts and has not failed to disclose any material fact that could cause any representation of warranty made herein to be materially misleading.   (0) Illegal Activity. No portion of the Property has been or will be purchased, Improved, equipped or furnished with proceeds of any illegal activity, and, to the best of Borrower's knowledge, there are no illegal activities or activities relating to any controlled substance at the Property.   (p) Contracts. All contracts, agreements, consents, waivers, documents and writings of every kind or character at any time to which Borrower is a party to be delivered to Lender pursuant to any of the provisions Of the Loan Documents are valid and enforceable against Borrower and, to the best knowledge of Borrower, are enforceable against all other parties thereto, and, to Borrower's actual knowledge, in all respects are what they purport to be and, to the best knowledge of Borrower, to the extent that any such writing shall Impose any obligation or duty on the party thereto or constitute a waiver of any rights which any such party might otherwise have, said writing shall be valid and enforceable against said party In accordance with Its terms, except as such or similar laws affecting the fights of creditors generally.   (q) Transfer of Property. To the best of Borrower's knowledge, there is no concurrent or subsequent escrow to be opened or closed upon the closing of the Loan which would have the effect of transferring all or any portion of the Property.   1.29 Single Purpose Entity. Borrower covenants, represents, warrants and agrees Ihat it has not done any of the following and shall not do any of the following;   (a) engage In any business or activity other than the acquisition, development, ownership, operation, leasing and managing and maintenance of the Property, and entering into the Loan and activities incidental thereto;   (b) acquire or own any material assets other than (i) the Property, and (ii) such incidental Personal Property as may be necessary for the operation of the Property; -29­   Description: San Bernardino,CA Doaument-Year.DocID 2005.202686 Page: 30 of 58       (c) merge Into or consolidate with any person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, without in each case Lender's consent; (d) (i) fail to observe its organizational formalities or preserve its existence as an entity duly organized, validly existing and in good standing (if applicable) under the laws of the jurisdiction of its organization or formation, and qualification to do business In the State where the Property is located. if applicable, or (ii) without the prior written consent of Lender, amend, modify, terminate or fall to comply with the provisions of Borrower's partnership agreement, articles or certificate of incorporation, articles of organization or similar organizational documents, as the case may be; principals or of any other person or entity, participate in a cash management system with any other entity or person or fail to use its own separate stationery. Invoices and checks; (e) own any subsidiary or make any investment in. any person or entity without the consent of Lender; (f) comingle its assets with the assets of any of its members, general partners, affiliates, principals or of any other person or entity, participate in a cash management system with any other entity or person or fail to use its own separate stationery, invoices and checks. (g) incur any debt, secured or unsecured, direct or contingent (including, without limitation, guaranteeing any obligation). other than the Loan, except for trade payables in the ordinary course of its business of owning and operating the Property, provided that such debt (i) is not evidenced by a note, (ii) is paid within sixty (60) days of the date incurred, (iii) does not exceed in the aggregate four percent (4%) of the outstanding principal balance of the Note. and (iv) is payable 10 trade creditors and in amounts as are normal and reasonable under the circumstances;   (h) fail to pay its debts and liabilities (including. without limitation, es applicable, shared personnel and overhead expenses) from its assets as the same shall become due; (i) (i) fail to maintain its records (including. without limitation. financial statements). books of account and bank accounts separate and apart from those of the members, general partners, principals and affiliates of Borrower, the affiliates of a member, general partner or principal of Borrower, and any other person or entity, to permit Its assets or liabilities to be listed as assets or liabilities on the financial statement of any other entity or person. or (iii) include the assets or liabilities of any other person or entity on its financial statements;   (j) enter Into any contract or agreement with any member, general partner, principal or affiliate of Borrower. any Guarantor, or any member, general partner, principal or affiliate thereof (other than a business management services agreement with an affiliate of Borrower, provided that (i) such agreement is acceptable to Lender. (ii) the manager, or equivalent thereof, under such agreement holds itself out as an agent of Borrower, and (iii) the agreement meets the standards set forth in this subsection (j) following this parenthetical), except upon terms and conditions that are commercially reasonable. Intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any member, general partner, principal or affiliate of Borrower, any Guarantor, or any member, general partner, principal or affiliate thereof;   (k) fall to correct any known misunderstandings regarding the separate identity of Borrower or any member, general partner, principal or affiliate thereof or any other person;   (I) guarantee or become obligated for the debts of any other entity or person or hold itself out to be responsible for the debts of another person;   (m) make any loans or advances to any third party, including, without limitation, any member, general partner, principal or affiliate of Borrower, or any member, general partner, principal or affiliate thereof, and shall not acquire obligations or securities of any member, general partner, principal or affiliate of Borrower, or any member, general partner, or affiliate thereof; -30­   Desaription: San Bernardino/CA Document-Year.DocID 2005.202686 Page: 3~ of 58       (n) fail to file its own tax returns or, if part of a consolidated group, fail to be shown as a separate member of such group;   (o) fail either to hold itself out to the public as a legal entity separate and distinct from any other entity or person Or to conduct its business solely in its own name In order not (i) to mislead others as to the identity with which such other party is transacting business, or (ii) to suggest that Borrower is responsible for the debts of any third party including, without limitation, any member, general partner, principal or affiliate of Borrower, or any member, general partner, principal or affiliate thereof);   (p) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations;   (q) share any common logo with or hold Itself out as or be considered as a department or division of (i) any general partner, principal, member or affiliate of Borrower, (ii) any affiliate of a general partner, principal or member of Borrower, or (iii) any other person or entity;   (r) fail to allocate fairly and reasonably any overhead expenses that are shared with an affiliate, including, without limitation, paying for office space and services performed by any employee of all corporate actions to the extent permitted by applicable law; (s) pledge its assets for the benefit of any other person or entity, other than with respect to the Loan; (t) fail to maintain a sufficient number of employees In light of its contemplated business operations;   (u) fail to hold its assets in its own name;     (v) if Borrower is a corporation, fail to consider the interests of its creditors in connection with all corporate actions to the extent permitted by law; (w) have any of its obligations (other than the Loan) guaranteed by an affiliate except Guarantor; or   (x) fail to provide in its (i) articles of organization, certificate of formation and/or operating agreement, as applicable, if Borrower is a limited liability company, (ii) limited partnership agreement if Borrower is a limited partnership or (iii) certificate of incorporation, if Borrower is a corporation, that for SO long as the Loan is outstanding pursuant to the Note and this Security Instrument, Borrower shall not file or consent to the filing of any petition, either voluntary or Involuntary), to take advantage of any applicable insolvency, bankruptcy, liquidation or reorganization statute, or make an assignment for the benefit of creditors without the affirmative vote of all of the general partners/managing members/directors of Borrower. Notwithstanding the foregoing, under the terms of the Subordination Agreement referred to in Section 1.15(h) hereof, Junior Lender (defined in Section 1.15(h) shall have the right, at Junior Lender's option, to cure monetary defaults or monetary Events of default under the Loan Documents, and the provisions of this Section t.29 shall not affect such right.   1.30 ERISA.   (a) Borrower shall not engage in any transaction which would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Note, this Security Instrument and the other Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under either the Employee Retirement Income Security Act of 1974, as amended ("ERISA') or the Internal Revenue Code.   (b) Borrower represents and warrants that, as of the date hereof and throughout the term of this Security Instrument (1) Borrower is not and will not be an "employee benefit plan" as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, (2) Borrower is not and will not be a "governmental plan" within the meaning of Section 3(32) of ERISA; (3) Borrower is not and will not be, ·31­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 32 of 58       and transactions by or with Borrower are not and will not be, subject 10 state stalutes regulating investments and fiduciary obligations wilh respect to governmental plans; and (4) one or more of the following circumstances is and will be true:   (i) Equity interests (as defined in 29 C.F.R. §251 0.3-101 (b)(1)) in Borrower are publicly-offered securities within Ihe meaning of 29 C.F.R. §251 0.3-101 (b)(2);   (II) Less than twenty-five percent (25%) of each outstanding class of equity interests in Borrower are held by "benefit plan investors" within the meaning of 29 C.F.R. §2510.3­101 (1)(2); or (iii) Borrower qualifies as an "operating company" or a "real estate operating company" within the meaning of 29 C.F.R. §2510.3-101{c) or (e), or an Investment company registered under The Investment Company Act of 1940,   At Lender's request from time to time throughout the term of this security Instrument, Borrower shall deliver to Lender such certifications and other evidence acceptable to Lender of Borrower's compliance with the covenants, representations and warranties contained in this Section 1.30.   ARTICLE 2. DEFAULT   2.01 Events of Default. The occurrence of any of the following events shall be an Event of Default hereunder (an "Event of Default):   (a) Borrower fails to pay any interest, principal or other monies due under the Note or other Loan Documents on the date any such amount is due;   (b) if any of the Impositions or other charges referred to in Sections 1.04 or 1.06 hereof are not paid when the same is due and payable, except to the extent sums sufficient to pay such Impositions or other charges have been deposited with Lender in accordance with the terms of this Security Instrument;   (c) if the insurance policies required by Section 1.07 hereof are not kept in full force and effect, or if such insurance policies are not delivered to Lender upon request;   (d) any representation or warranty made by Borrower, any Indemnitor or any person guaranteeing payment or performance of the Secured Obligations or any portion thereof (whether one or more, a "Guarantor") in connection with the Property, the Loan, or the application for the Loan proves to have been materially false or materially misleading when made, or Borrower or any Guarantor fails to disclose any material fact respecting the Property, the Loan, or the application for the Loan;   (e) any governmental authority takes or Institutes any action, which in the sole opinion of Lender, will adversely affect Borrower's condition, operations, or ability to repay the Loan, or will adversely affect any Guarantor's condition. operations. or ability to repay the Loan, if such action remains effective for more than thirty (30) days;   (f) if Borrower violates or does not comply with any of the provisions of special purpose entity requirements set forth in Section 1.29 (captioned "Single Purpose Entity") hereof;   (g) Lender fails to have a legal, valid, binding, and enforceable first priority lien acceptable to Lender on the Property;   (h) Borrower becomes insolvent or there is a material adverse change in the assets, liabilities or financial position of Borrower, any general partner, or any Guarantor, -32­   Descr~ption: San Ber.nardino,CA Document-Year.DocID 2005.202686 Page: 33 of 58       (i) any action or proceeding is commenced by any partner, principal, or member in Borrower which seeks as one of its remedies the dissolution of Borrower or any partner, principal, or member (as applicable) in Borrower;   (j) any governmental authority, or any court at the instance thereof, assumes control over the affairs or operations of, or a receiver or trustee is appointed over, or garnishment shall be issued or made against any substantial part of, the property of Borrower or any guarantor of the Loan;   (k) Borrower or any Guarantor of the Loan admits in writing its inability to pay its debts when due, or makes an assignment for the benefit of creditors; or Borrower or any Guarantor of the Loan applies for or consents to the appointment of any receiver, trustee or similar officer of Borrower or any such Guarantor, as the case may be, or for all or any substantial part of their respective property; or Borrower or any such Guarantor institutes (by petition, application, answer, consent or otherwise) any bankruptcy, Insolvency, reorganization, arrangement, readjustment of debts, dissolution, liquidation, or similar proceedings relating to Borrower or any such Guarantor, as the case may be, or under the laws of any jurisdiction;   (l) a receiver, trustee or similar officer is appointed for Borrower or any Guarantor of the Loan or for ali or any substantial part of their respective property without the application Of consent of Borrower for any such Guarantor, as the case may be, and such appointment is not discharged within sixty (60) days (whether or not consecutive); or any bankruptcy, insolvency, reorganization, arrangements, readjustment of debt, dissolution, liquidation Dr similar proceedings is instituted (by petition, application or otherwise) against Borrower or any such Guarantor and shall not be dismissed within sixty (60) days;   (m) any Transfer or permitted Transfer (as defined in Section 1.15 hereof) occurs without the prior written consent of Lender, including without limitation a Sale, Pledge or an encumbrance of the Property, voluntarily Dr involuntarily, by any lien or encumbrance other than this Security Instrument;   (n) the termination or dissolution of Borrower, any general partner in Borrower Dr any Guarantor; or any action or proceeding Is commenced which seeks as one of its remedies the dissolution of Borrower or any general partner in Borrower or any Guarantor;   (o) if any default occurs under any guaranty or indemnity executed in connection herewith (including, without limitation, the Environmental Indemnification Agreement executed by Borrower and any other Indemnitor in connection with the Loan [the "Environmental Indemnlty1) and such default continues after the expiration of applicable grace periods, if any;   (p) if the Property becomes subject to any mechanic's, materialman's or other lien other than a lien for local real estate taxes and assessments not then due and payable and the lien shall remain undischarged of record (by payment, bonding or otherwise) for a period of thirty (30) days;   (q) if any federal tax lien Is filed against Borrower, any member or general partner of Borrower, any Guarantor, Dr any portion of the Property and same is not discharged of record within thirty (3D) days alter same as filed; or   (r) if for more than thirty (30) days alter notice from Lender, Borrower shall continue to be In default (other than the failure to pay monies due under the Note or the other Loan Documents) under any term, covenant or condition of the Note, this Security Instrument or the other Loan Documents not set forth in Subsections 2.01(8) through (Q) above; provided that if suoh default cannot reasonably be cured within such thirty (30) day period and Borrower shall have commenced to cure such default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty   (30) day period shall be extended for so long as it shall require Borrower in the exercise of due diligence to cure such default, it being agreed that no such extension shall be for a period in excess of sixty (60) days. -33­   Description: San Bernardino,CA Document-Year.DocID 2005.202586 Page: 34 of 58       All notice and cure periods provided herein or in any other Loan Document shall run concurrently with any notice or cure periods provided by applicable laws. All notices and cure periods described herein Dr in any other Loan Documents shall not be applicable to any event which with the giving of notice, the passage of time or both would constitute an Event of Default, if such event has occurred as of the date on which Lender commences a nonjudicial foreclosure proceeding (If such proceeding is allowed by law) with respect to another Event of Default. Such event shall constitute an independent Event of Default hereunder.   2.02 Acceleration Upon Default; Additional Remedies.   (a) Remedies. Upon the occurrence of any Event of Default, Lender mayor acting by or through Trustee may take such action, without notice or demand, as It deems advisable 10 protect and enforce its rights against Borrower in and to Ihe Property, including, without limitation, the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Lender or Trustee may determine, in their sole discretion, without impairing or otherwise affecting Ihe other rights and remedies of Lender or Trustee:   (1) declare all Secured Obligations to be Immediately due and payable;   (2) institute proceedings, judicial or otherwise, for the complete foreclosure of this Security Instrument under any applicable state or federal law In which case the Property or any interest therein may be sold for cash or upon credit in one or more parcels or in several interests or portions and in any order or manner;   (3) with or without entry, to the extent permitted and pursuant to the procedures provided by applicable state or federal law, institute proceedings for the partial foreclosure of this Security Instrument for the portion of the Secured Obligations then due and payable, subject to the continuing lien and security interest of this Security Instrument for the balance of the Secured Obligations not then due, unimpaired and without loss of priority;   (4) sell for cash or upon credit the Property or any part thereof and all estate, claim, demand, right, title and interest of Borrower therein and rights of redemption thereof, pursuant to power of sale or otherwise, at one or more sales, in one or more parcels, at such time and place, upon such terms and after such notice thereof as may be required or permitted by law;   (5) subject to the provisions of Section 10 (captioned "Exculpation") of the Note, institute an action, suit or proceeding in equity for the specific performance of any covenant, condition or agreement contained herein, in the Note or in the other Loan Documents;   (6) subject to the provisions of Section 10 (captioned "Exculpation") of the Note, recover judgment on the Note either before, during or after any proceedings for the enforcement of this Security Instrument or the other Loan Documents;   (7) apply for the appointment of e receiver, trustee, liquidator or conservator of the Property, without notice and without regard for the adequacy of the security for the Secured Obligations and without regard for the solvency of Borrower, any Guarantor, any Indemnitor or of any person, firm or other entity liable for the payment of the Secured Obligations;   (8) subject to any applicable state or federal law, the license granted to Borrower under Section 3.02 hereof shall automatically be revoked and Lender may enter into or upon the Property, either personally or by its agents, nominees or attorneys and dispossess Borrower and its agents and servants therefrom, without liability for trespass, damages or otherwise and exclude Borrower and its agents or servants wholly therefrom, and take possession of all rent rolls, Leases (Including, without limitation, the form Lease and amendments and exhibits), subleases (including, without limitation. the form sublease and amendments and exhibits) and rental and license agreements with the tenants, -34­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 35 of 58       subtenants and licensees, in possession of the Property or any part or parts thereof; tenants', subtenants' and licensees' money deposits or other property including, without limitation, any letter of credit) given to secure tenants', subtenants' and licensees' obligations under Leases, subleases or licenses, together with a list of the foregoing; all lists pertaining to current rent and license fee arrears; any and all architects' plans and specifications, licenses and permits, documents, books, records, accounts, surveys and property which relate to the management, leasing, operation, occupancy, ownership, insurance, maintenance, or service of or construction upon the Property and Borrower shall surrender possession thereof and of the Property to Lender upon demand, and thereupon Lender may (i) use, operate, manage, control, insure, maintain, repair, restore and otherwise deal with all and every part of the Property and conduct the business thereat; (ii) complete any construction on the Property in such manner and form as Lender deems advisable; (iii) make alterations, additions, renewals, replacements and improvements to or on the Property; (iv) exercise all rights and powers of Borrower with respect to the Property, whether in the name of Borrower or otherwise, including, without limitation, the right to make, cancel, enforce or modify Leases, obtain and evict tenants, and demand, sue for, collect and receive all Rents of the Property and every part thereof; (v) either require Borrower (A) to pay monthly In advance to Lender, or any receiver appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Property as may be occupied by Borrower, or (B) to vacate and surrender possession of the Property to Lender or to such receiver and, in default thereof, Borrower may be evicted by summary proceedings or otherwise; and (vi) apply the receipts from the Property to the payment of the Secured Obligations, In such order, priority and proportions as Lender shall determine after deducting therefrom all expenses (Including, without limitation, attorneys' fees) incurred in connection with the aforesaid operations and all amounts necessary to pay the Taxes, Other Impositions, Insurance Premiums and other expenses in connection with the Property, as well as just and reasonable compensation for the services of Lender, Its counsel, agents and employees; (9) exercise any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code, Including, without limitation,: (I) the right to take possession of the Personal Property and other UCC collateral or any part thereof, and to take such other measures as Lender or Trustee may deem necessary for the care, protection and preservation of the Personal Property, and other UCC collateral, and (ii) request Borrower at its expense to assemble the Personal Property and other UCC Collateral and make it available to Lender at a convenient place acceptable to Lender. Any notice of sale, disposition or other intended action by Lender or Trustee with respect to the Personal Property and other UCC collateral sent to Borrower in accordance with the provisions hereof at least ten (10) days prior to such action, shall constitute commercially reasonable notice to Borrower;   (10) apply any sums then deposited in the Impounds and any other sums held in escrow or otherwise by Lender In accordance with the terms of this Security Instrument or any other Loan Document to the payment of the following items in any order as determined by Lender:   (i) Taxes and Other Impositions;   (ii) Insurance Premiums;   (iii) Insurance Premiums;   (iv) amortization of the unpaid principal balance of the Note;   (11) all other sums payable pursuant to the Note, this Security Instrument and the other Loan Documents, including, without Iimitation, advances made by Lender pursuant to the terms of this Security Instrument;   (12) surrender the insurance policies maintained pursuant to Section 1.07 hereof, collect the unearned Insurance Premiums and apply such sums as a credit on the Secured Obligations in such priority and proportion as Lender shall determine, and in connection therewith, Borrower hereby appoints Lender as agent and attorney-in-fact (which is coupled with an interest and is therefore Irrevocable) for Borrower to collect such unearned Insurance Premiums; -35­   Descr£ption: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 36 of 58       (13) apply the undisbursed balance of any Net Proceeds Deficiency deposit, together with interest thereon, 10 the payment of the Secured Obligations in such order, priority and proportions as Lender shall determine; or (14) pursue such other remedies as Lender may have under applicable state or federal law. In the event of a sale, by foreclosure, power of sale, or otherwise, of less than all of the Property, this Security Instrument shall continue as a lien and security interest on the remaining portion of the Property unimpaired and without loss of priority. Notwithstanding the provisions of this Section 2.02(a) hereof to the contrary, If any Event of Default as described In clause (h). (I), ID or (k) of Section 2.01 hereof shall occur, the entire unpaid Secured Obligations shall be automatically due and payable, without any further notice, demand or other action by Lender.   (b) Application of Proceeds. The purchase money, proceeds and avails of any disposition of the Property, or any part thereof, or any other sums collected by Lender pursuant to the Note, this Security Instrument or the other Loan Documents, may be applied by Lender to the payment of the Secured Obligations in such priority and proportions as Lender shall determine.   (c) Right to Cure Defaults. Upon the occurrence of any Event of Default or if Borrower fails 10 make any payment or to do any act as herein provided. lender may, but without any obligation to do so and without notice to or demand on Borrower and without releasing Borrower from any obligation hereunder, make or do the same in such manner and to such extent as Lender may deem necessary to protect the security hereof. Lender or Trustee is authorized to enter upon the Property for such purposes, or appear in, defend, or bring any action or proceeding to protect its interest in the Property or to foreclose this Security Instrument or collect the Secured Obligations. The cost and expense of any cure hereunder (including, without limitation, attorneys' fees to the extent permitted by law), with interest as provided In this Section 2.02(c) hereof, shall constitute a portion of the Secured Obligations and shall be due and payable to Lender upon demand. All such costs and expenses incurred by Lender or Trustee in remedying such Event of Default or such failed payment or act or in appearing in, defending, or bringing any such action or proceeding shall bear Interest at the Default Rate (defined In the Note), for the period after notice from Lender that such cost or expense was incurred to the date of payment to Lender. All such costs and expenses incurred by Lender together with interest thereon calculated at the Default Rate shall be deemed to constitute a portion of the Secured Obligations and shall be immediately due and payable upon demand by Lender therefor.   (d) Actions and Proceedings. Lender or Trustee has the right to appear In and defend any action or proceeding brought with respect to the Property and, after the occurrence and during the continuance of an Event of Default, to bring any action or proceeding, in the name and on behalf of Borrower, which Lender decides should be brought to protect its interest in the Property.   (e) Recovery of Sums Required To Be Paid. Lender shall have the right from time to time to take action to recover any sum or sums which constitute a part of the Secured Obligations as the same become due, without regard to whether or not the balance of the Secured Obligations shall be due. and without prejudice to the right of Lender or Trustee thereafter to bring an action of foreclosure, or any other action, for a default or defaults by Borrower existing at the time such earlier action was commenced.   (f) Examination of Books and Records. Lender, Its agents, accountants and attorneys shall have the right upon reasonable prior notice to Borrower (unless an Event of Default exists, In which case no notice shall be required), to examine and audit, during reasonable business hours, the records, books, management and other papers of Borrower and its affiliates or of any Guarantor or Indemnitor which pertain to their financial condition or the income, expenses and operation of the Property, at the Property or at any office regularly maintained by Borrower, its affiliates or any Guarantor or Indemnitor where the books and records are located. Lender and its agents shall have the right upon notice to make copies and extracts from the foregoing records and other papers. -36­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 37 of 58       (g) Other Rights, etc.   (1) The failure of Lender or Trustee to insist upon strict performance of any term hereof shall not be deemed to be a waiver of any term of this Security Instrument. Borrower shall not be relieved of Borrower's obligations hereunder by reason of (1) the failure of Lender or Trustee to comply with any request of Borrower, any Guarantor or any Indemnitor to take any action to foreclose this Security Instrument or otherwise enforce any of the provisions hereof or of the Note or the other Loan Documents, (2) the release, regardless of consideration, of the whole or any part of the Property, or of any person liable for the Secured Obligations or any portion thereof, or (3) any agreement or stipulation by Lender extending the time of payment, changing the rate of interest, or otherwise modifying or supplementing the terms of the Note, this Security Instrument or the other Loan Documents.   (2) It Is agreed that the risk of loss or damage to the Property is on Borrower, and Lender shall have no liability whatsoever for decline in value of the Property, for failure to maintain the insurance policies required pursuant to Section 1.07 hereof, or for failure to determine whether insurance in force is adequate as to the amount of risks insured. Possession by Lender shall not be deemed an election of judicial relief, if any such possession is requested or obtained, with respect to any portion of the Property, or collateral not in Lender's possession.   (3) Lender may resort for the payment of the Secured Obligations to any other security held by Lender in such order and manner as Lender may elect. Lender or Trustee may take action to recover the Secured Obligations, or any portion thereof, or to enforce any covenant hereof without prejudice to the right of Lender or Trustee thereafter to foreclose this Security Instrument The rights of Lender or Trustee under this Security Instrument shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the others. No act of Lender or Trustee shall be construed as an election to proceed under anyone provision herein to the exclusion of any other provision. Neither Lender nor Trustee shall be limited exclusively to the rights and remedies herein stated but shall be entitled to every right and remedy now or hereafter afforded at law or in equity.   (h) Right to Release Any Portion of the Property. Lender may release any portion of the Property for such consideration as Lender may require without, as to the remainder of the Property, in any way impairing or affecting the lien or priority of this Security Instrument, or improving the position of any subordinate lienholder with respect thereto, except to the extent that the Obligations hereunder shall have been reduced by the actual monetary consideration, if any, received by Lender for such release, and may accept by assignment, pledge or otherwise any other Property in place thereof as Lender may require without being accountable for so doing to any other lienholder. This Security Instrument shall continue as a lien and security Interest In the remaining portion of the Property. (i) Violation of Laws. If the Property Is not In compliance with applicable laws, Lender may impose additional requirements upon Borrower in connection herewith including, without limitation, monetary reserves or financial equivalents.   (j) Right of Entry. Lender and its agents shall have the right to enter and inspect the Property at all reasonable limes. Except in case of emergency, such entries shall be with reasonable prior notice and shall be with due regard for rights of tenants.   ARTICLE 3. ASSIGNMENT OF LEASES, RENTS. INCOME AND PROFITS   3.01 Assignment; Priority of Assignment. Borrower (referred to in this Article 3 as "Assignor") hereby irrevocably, absolutely, presently and unconditionally grants, sells, assigns, transfers, pledges and sets over to Lender (referred to in this Article 3 as "Assignee"):   (a) any and all Leases, together with all of Assignor's right, title and interest in the Leases including, without Iimitation, all modifications, amendments, extensions and renewals of the Leases and   ·37·   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 38 of 58       all rights and privileges Incident thereto and all demands of claims arising thereunder (including, without limitation, any cancellation fees or other premiums collected in connection with the Leases) or under any policies insuring against loss of rents or profits;   (b) all Rents, including, without limitation, expenses paid by tenants; and   (c) all security deposits, guaranties and other security now or hereafter held by Assignor as security for the perfonnance of the obligations of the tenants under such Leases.   The foregoing assignment of Rents and Leases is intended by Assignor and Assignee to create and shall be construed to create a present and absolute assignment to Assignee of all of Assignor's right, title and interest in the Rents and in the Leases and shall not be deemed to create merely an assignment for security only for the payment of any Indebtedness or the performance of any obligations of Assignor under any of the Loan Documents, This assignment is Included within the text of this Security Instrument for convenience only, but such inclusion shall not derogate from its effectiveness any other assignment of Rents or Leases contained in any other Loan Documents or otherwise and all shall be supplementary to one another.   Nothing contained herein shall operate or be construed to obligate Assignee to perform any of the terms, covenants and conditions contained In any Lease or otherwise to Impose any obligation upon Assignee with respect to any Lease, including, without limitation, any obligation arising out of any covenant of quiet enjoyment therein contained In the event the tenant under any such Lease shall have been joined as a party defendant in any action to foreclose and the estate of such tenant shall have been thereby terminated. Assignor and Assignee further agree that, during the term of this Security Instrument, the Rents shall not constitute property of Assignor (or of any estate of Assignor) within the meaning of 11 u.s.c. §541 , as may be amended from time to time. Assignor hereby represents and warrants that (i) Assignor has good title to the Leases and the full power and light to assign the Leases; (ii) no other persons have any title or interest in the Leases; (iii) the Leases are in full force and effect and have not been modified except as set forth in the certified occupancy statement delivered to and approved by Assignee; (Iv) there are no defaults under any of the Leases; (v) no other assignments of all or any portion of the Rents or the Leases exist or remain outstanding; (vi) all Rents due have been paid in full; (vii) none of the Rents reserved in the Leases have been assigned or otherwise pledged or hypothecated; (viii) none of the Rents have been collected for more than one (1) month in advance (except a security deposit shall not be deemed rent collected in advance); (IX) the property demised under the Leases have been completed and the tenants under the Leases have accepted the same and have taken possession of the same on a rent-paying basis; (x) there exist no offsets or defenses to the payment of any portion of the Rents; (xl) Assignor has received no notice from any tenant challenging the validity or enforceability of any Lease; (xii) there are no agreements with the tenants under the Leases other than expressly set forth in each Lease; (xiii) the Leases are valid and enforceable against Assignor and the tenants set forth therein; (xiv) no Lease contains an option to purchase, right of first refusal to purchase, or any other similar provision; (xv) no person or entity has any possessory interest in, or right to occupy, the Property except under and pursuant to a Lease; (xvi) each Lease Is subordinate to this Security Instrument, either pursuant to its terms or a recordable subordination agreement; (xvii) no Lease has the benefit of a non-disturbance agreement that would be considered unacceptable to prudent institutional lenders; (xviii) all security deposits relating to the Leases reflected on the certified rent roll delivered to Assignee have been collected by Assignor; and (xix) no brokerage commissions or finders fees are due and payable regarding any Lease. Assignor shall take such action and to execute, deliver and record such documents as may be reasonably necessary to evidence such assignment, to establish the priority thereof and to carry out the intent and purpose hereof. If requested by Assignee, Assignor shall execute a specific assignment of any Lease now or hereafter affecting all or any portion of tlhe Property and shall cause the tenant or tenants thereunder to execute, deliver and record a Subordination, Non-Disturbance and Attornment Agreement, in form and substance reasonably satisfactory to Assignee.   -38­   Description: San Ber.nardino,CA Document-Year.DocID 2005.202686 Page: 39 of 58       Assignor shall faithfully perform and discharge all of Assignor's obligations thereunder. Assignor shall defend Assignee in any action relating to the Leases and shall indemnify, defend and hold Assignee harmless from and against any claims of tenants or third parties with respect to the Leases. Assignor shall not receive or collect any Rents in advance of the date due or waive or defer any terms of the Leases without the consent of Assignee. Assignor shall not pledge, assign or further encumber the Leases or any Rents or (except as is permitted by Section 1.26(b) above) modify or terminate the Leases, or permit any assignment or sublease thereunder, without Assignee's prior written consent. Assignor Irrevocably appoints Assignee its true and lawful attorney-in-fact, at the option of Assignee at any time and from time to time, to demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, in the name of Assignor, Trustee or Assignee, for all such Rents, and apply the same to the Secured Obligations.   3.02 Grant of Revocable License to Collect Rents. So long as an Event of Default shall not have occurred and be continuing under this Security Instrument, Assignee hereby grants to Assignor a revocable license to enforce the Leases, to collect the Rents, to apply the Rents to the payment of the costs and expenses incurred in connection with the Property and to any Secured Obligations. If requested by Assignee, Assignor shall (a) give written notice to the tenants under the Leases of the assignment of Rents and Leases by Assignor to Assignee pursuant to Section 3.01 hereof, of too grant of the revocable license by Assignee to Assignor pursuant to this Section 3.02, and of the respective rights of Assignor and Assignee under this Article 3; and (b) obtain such tenants' agreements to be bound by and comply with the provisions of such assignment and grant. All Leases hereafter executed with respect to the Property shall contain a reference to the foregoing assignment and grant and shall state that the tenant executing such Lease shall be bound by and shall comply with the provisions hereof.   3.03 Revocation of License; Assignee's Rights, upon the occurrence of an Event of Default and at any time thereafter during the continuance thereof, subject to applicable laws, the license granted to Assignor hereunder shall automatically be revoked. Upon such revocation, Assignor shall promptly deliver to Assignee all Rents then held by or for the benefit of Assignor. Assignee, In addition to any other rights granted to Assignee under this Security Instrument, shall have the right: (I) to notify the tenants under the Leases that Assignor's license to collect Rents has been revoked, and, with or without taking possession of the Property, to direct such tenant to thereafter make all payments of Rent and to perform all obligations under this Lease to or for the benefit of Assignee or as directed by Assignee; (ii) to enter upon the Property and to take over and assume the management, operation and maintenance of the Property, to enforce all Leases and collect all Rents due thereunder, to amend, modify, extend, renew and terminate any or all Leases and execute new leases; and (iii) to perform all other acts which Assignee shall determine to be necessary or desirable to carry out the foregoing. Each tenant under any lease shall be entitled to rely upon any notice from Assignee and shall be protected with respect to any payment of Rent made pursuant to such notice, Irrespective of whether a dispute exists between Assignor and Assignee with respect to the existence of an Event of Default or the rights of Assignee hereunder. The payment of Rent to Assignee pursuant to any such notice and the performance of obligations under any Lease to or for the benefit of Assignee shall not cause Assignee to assume or be bound by the provisions of such Lease including, without Iimitation, the duly to return any security deposit to the tenant under such Lease unless and to the extent such security deposit was paid to Assignee by Assignor. Assignor shall indemnify, defend and hold Assignee harmless from and against any and all losses, claims, damage or liability arising out of any claim by a tenant with respect thereto,   3.04 Application of Rents; Security Deposits. All Rents received by Assignee pursuant to this Security Instrument shall be applied by Assignee, as determined by Assignee, to any of the following:   (i) the costs and expenses of collection, including, without limitation, attorneys' fees and receivership fees, costs and expenses; (ii) the costs and expenses incurred In connection with the management, operation and maintenance of the Property; (iii) the establishment of reasonable reserves for working capital and for anticipated or projected costs and expense, including, without limitation, capital improvements which may be necessary or desirable or required by law; and (iv) the payment of any indebtedness then owing by Assignor to Assignee. In connection therewith, Assignor further agrees that all Rents received by Assignee from any tenant may be allocated first, if Assignee so elects, to the payment of all current obligations of such tenant under its Lease and not to amounts which may be   -39·   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 40 of 58       accrued and unpaid as of the date of revocation of Assignor's license to collect such Rents. Assignee may, but shall have no obligation to, pursue any tenant for the payment of Rent which may be due under its Lease with respect to any period prior to the exercise of Assignee's rights hereunder or which may become due thereafter. Assignor agrees that the collection of Rents by Assignee and the application of such Rents by Assignee to the costs, expenses and obligations referred to in this Section 3.04 shall not cure or waive any default or Event of Default or invalidate any act including, without limitation, any sale of all or any portion of the Property now or hereafter securing the Loan) done in response to or as a result of such default or Event of Default or pursuant to any notice of default or notice of sale issued pursuant to any Loan Document.   3.05 No Mortgagee in Possession. Nothing contained in this Security Instrument shall be construed as constituting Assignee a "mortgagee in possession" in absence of the taking of actual possession of the Property by Lender. In the exercise of the powers herein granted Lender, no liability shall be asserted or enforced against Assignee, all such liability being expressly waived and released by Assignor.   ARTICLE 4. SECONDARY MARKET   4.01 Transfer of Loan. Lender may, at any time, sell, transfer or assign the Note, this Security Instrument and the other Loan Documents, and any or all servicing rights with respect thereto, or grant participations therein or issue mortgage pass-through certificates or other securities evidencing a beneficial Interest in a rated or unrated public offering or private placement (the securities"). Lender may forward to each purchaser, transferee, assignee, servicer, participant or investor in such Securities or any rating agency ("Rating Agency") rating such Securities (collectively, the 'Investor") and each prospective Investor, all documents and information which Lender now has or may hereafter acquire relating to the Loan and to Borrower, and the Property, whether furnished by Borrower, or otherwise, as Lender determines necessary or desirable. Borrower shall cooperate with Lender in connection with any transfer made or any Securities created pursuant to this Security Instrument, including, without limitation, the delivery of an estoppel certificate in accordance therewith, and such other documents as may be reasonably required by Lender. Borrower shall also furnish and Borrower consents to Lender furnishing to such Investors or such prospective Investors or Rating Agency any and all information concerning the Property, the Leases, the financial condition of Borrower as may be requested by Lender, any Investor or any prospective Investor or Rating Agency in connection with any sale, transfer or participation interest. Lender may retain or assign responsibility for servicing the Note, this Security Instrument, and the other Loan Documents, or may delegate some or all of such responsibility and/or obligations to a servicer (including, without limitation, any subservicer or master servicer) or agent. Lender may make such assignment or delegation on behalf of the Investors if the Note is sold or this Security Instrument or the other Loan Documents are assigned. All references to "Lender" In the Loan Documents shall refer to and Include any such servicer or agent, to the extent applicable, In each case as designated by Lender from time to time.   4.02 Conversion to Registered Form. At the request and the expense of Lender, Borrower shall appoint, as its agent, a registrar and transfer agent (the "Registrar") acceptable to Lender which shall maintain, subject to such reasonable regulations as it shall provide, such books and records as are necessary for the registration and transfer of the Note In a manner that Shall cause the Note to be considered to be in registered form for purposes of Section 163(1) of the U.S. Internal Revenue Code. The option to convert the Note into registered form once exercised may not be revoked. Any agreement setting out the rights and obligations of the Registrar shall be subject to the reasonable approval of Lender. Borrower may revoke the appointment of any particular person as Registrar, effective upon the effectiveness of the appointment of a replacement Registrar. The Registrar Shall not be entitled to any fee from Lender or any other Lender in respect of transfers of the Note and this Security Instrument (other than taxes and governmental charges and fees).   4.03 Estoppel Certificate. Upon any transfer or proposed transfer contemplated by Section 4.01 above, at Lender's request, Borrower, or any guarantors or indemnitors shall provide an estoppel Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 4~ of 58 Order: 327283 Comment: -_._       certificate to the Investor or any prospective Investor in such form, substance and detail as Lender, such Investor or prospective Investor may require.   ARTICLE 5. FURTHER ASSURANCES   5.01 Recording of Security Instrument; Other Assurances. Borrower forthwith upon the execution and delivery of this Security Instrument and thereafter, from time to time, will cause this Security Instrument and any of the Loan Documents creating a lien or security Interest or evidencing the lien hereof upon the Property and each instrument of further assurance to be filed, registered or recorded In such manner and in such places as may be required by any present or future law In order to publish notice of and fully to protect and perfect the lien or security interest hereof upon, and the interest of Lender in, the Property. Borrower will pay all taxes, filing, registration or recording fees, and all expenses incident to the preparation, execution, acknowledgment and/or recording of the Note, this Security Instrument, the other Loan Documents, any note or deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property and any instrument of further assurance, and any modification or amendment of the foregoing documents, and all federal, state, county and municipal taxes, duties, imposts, assessments and charges arising out of or in connection with the execution and delivery of this Security Instrument, any deed of trust or mortgage supplemental hereto, any security instrument with respect to the Property or any instrument of further assurance, and any modification or amendment of the foregoing documents, except where prohibited by law so to do.   5.02 Further Acts. Borrower will, at the cost of Borrower, and without expense to Lender, do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, deeds of trust, mortgages, assignments, notices of assignments, transfers and assurances as Lender shall, from time to time, require, for the better assuring, conveying, assigning, transferring, and confirming unto Lender and Trustee the Property and rights hereby deeded, mortgaged, granted, bargained, sold. conveyed, confirmed, pledged, assigned, warranted and transferred or Intended now or hereafter so to be, or which Borrower may be or may hereafter become bound to conveyor assign to Lender, or for carrying out the intention or facilitating the performance of the terms of this Security Instrument or for filing, registering or recording this Security Instrument, or for complying with all applicable laws. Borrower, on demand, will execute and deliver and hereby authorizes Lender to execute in the name of Borrower or without the signature of Borrower to the extent Lender may lawfully do so, one or more financing statements, chattel mortgages or other instruments, to evidence more effectively the security Interest of Lender in the Property. Borrower grants to Lender an Irrevocable power of attorney coupled with an interest for the purpose of exercising and perfecting any and all rights and remedies available to Lender at law and in equity, including, without limitation, such rights and remedies available to Lender pursuant to this paragraph. Borrower specifically agrees that all power granted to Lender under this Security Instrument may be assigned by Lender to its successors or assigns as holder of the Note.   5.03 Changes in Laws Regarding Taxation; Documentary Stamps.   (a) In the event of the passage after the date of this Security Instrument of any law of the state where the Property is located deducting from the value of real property for the purpose of taxation any lien or encumbrance thereon or changing in any way the laws for the taxation of mortgages or loans secured by mortgages for slate or local purposes or the manner of the collection of any such taxes, and imposing a tax, (including, without limitation, a withholding tax) either directly or indirectly, on this Security Instrument, the Note or the Loan, Borrower shall, if permitted by law. pay any tax imposed as a result of any such law within the statutory period or within fifteen (1S) days after demand in Lender, whichever is less, provided, however, that if, In the opinion of the attorneys for Lender, Borrower is not permitted by law to pay such taxes, Lender shall have the right, at its option, to declare the Loan due and payable on a date specified in a prior notice to Borrower of not less than thirty (30) days. Any prepayment made by Borrower pursuant to the terms of this paragraph shall be made without any Prepayment Charge (as defined In the Note),   -41·   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 42 of 58       (b) If at any time the United states of America, any state thereof, or any governmental subdivision of any such State, shall require revenue or other stamps to be affixed to the Note or this Security Instrument, Borrower will, upon demand, pay for the same, with interest and penalties thereon, if any. ARTICLE 6. STATE-SPECIFIC PROVISIONS/MODIFICATIONS AND OTHER PROVISIONS   6.01 Inconsistencies. In the event of any conflicts between the terms and conditions of this Article 6 and the remainder of this Security Instrument, the terms and conditions of this Article 6 shall govern, but only to the extent of any such conflicts.   6.02 No Border Zone Property. Borrower hereby represents and warrants that the Property has not been designated as a Border Zone Property under the provisions of California Health and Safety Code, Sections 25220 et. Seq. or any regulation adopted in accordance therewith, and there has been no occurrence or condition on any real property adjoining or in the vicinity of the Property that is reasonably likely to cause the Property or any part thereof to be designated as Border Zone Property.   6.03 Environmental Impairment. In furtherance of and not in limitation of any other provisions of this Security Instrument, including without limitation Section 1.03:   In accordance with California Code of Civil Procedure Section 726.5, Lender may waive its lien against the Property or any portion thereof, together with fixtures or personal property thereon, to the extent such property is found to be environmentally impaired, and may exercise any and all rights and remedies of an unsecured creditor against Borrower and all of Borrower's assets and property for the recovery of any deficiency, including, without limitation, seeking an attachment order under California Code of Civil Procedure Section 483.010. No such waiver shall be final or binding on Lender unless and until a final money judgment is obtained against Borrower. As between Lender and Borrower, for purposes of California Code of Civil Procedure Section 726.5, Borrower shall have the burden of proving that the release or threatened release was not knowingly or negligently caused or contributed to, or knowingly or willfully permitted or acquiesced to by Borrower or any related party (or any affiliate or agent of Borrower or any related party) and that Borrower made written disclosure of the release to Lender or that Lender otherwise obtained actual knowledge thereof prior to the making of the loan evidenced by the Note. Notwithstanding anything to the contrary contained in this Security Instrument or the other Loan Documents, Borrower shall be fully and personally liable for all judgments and awards entered against Borrower pursuant to California Code of Civil Procedure 726.5 and such liability shall be an exception to any non-recourse or exculpatory provision in this Security Instrument or the other Loan Documents and shall not be limited to the original principal amount of the obligations secured by this Security Instrument. Borrower's obligations hereunder shall survive the foreclosure, deed in lieu of foreclosure, release, reconveyance or any other transfer of the Property or this Security Instrument. For the purpose of any action brought under this Section, Borrower hereby waives the defense of laches and any applicable statute of limitations. For purposes of California Code of Civil Procedure 726.5, the acts, knowledge and notice of each "726.5 Party" shall be attributed to and be deemed to have been performed by the party or parties then obligated on and liable for payment of the Note. As used herein, '726.5 Party" shall mean Borrower, any successor owner to Borrower of all or any portion of the Property, any related party of Borrower or any such successor and any affiliate or agent of Borrower, any such successor or any such related party.   Borrower hereby confirms the right of Lender (or a receiver appointed by Lender to enter upon and inspect all or any portion of the Property for the purpose of determining the existence, location, nature and magnitude of any past or present release or threatened release of any hazardous substance into, onto, beneath, or from the Property in accordance with Section 2929.5 of the California Civil Code. All reasonable costs and expenses incurred by Lender pursuant to this provision or pursuant to Section 2929.5 of the California Civil Code, including, without limitation, costs of consultants and contractors, costs of repair of any physical Injury to the Property normal and customary to the tests and studies, court costs and attorneys' fees, costs and expenses, whether incurred in litigation or not and whether before or   -42­   Description: San BernardinorCA Document-year.DocID 2005.202686 Page: 43 of 58       alien judgment, shall be payable by Borrower and the Indemnitor(s) (other than Borrower) under the Environmental Indemnification Agreement executed in connection with the Loan ("Indemnitor(s),) and, to the extent advanced or incurred by Lender, shall be reimbursed to Lender by Borrower and the lndemnitor(s) upon demand. This provision is separate and several, and shall survive merger into any Judgment.   In addition, Lender shall have the right to appoint a receiver when permitted under Section 564 of the California Code of Civil Procedure, including, without limitation, in order to enforce Lender's rights under Section 2929.5 of the California Civil Code. The receiver shall have all of the rights and powers to the fullest extent permitted by law. The receiver shall have the right to apply Rents to cleanup, remediation or other response action concerning the release or threatened release of Hazardous Materials, whether or not such actions are pursuant to an order of any federal, state or local governmental agency.   6.04 Waiver of Rights Regarding Condemnation Proceeds. Borrower unconditionally and irrevocably waives all rights of a property owner under Section 1265.225(a) of the California Code of Civil Procedure or any successor statute providing for the allocation of condemnation proceeds between a property owner and a lien holder.   6.05 Evasion of Prepayment Terms. If an Event of Default shall occur, a tender of any payment of principal by Borrower, its successors or assigns or by anyone on behalf of Borrower, its successors or assigns, In excess of the amount which would have been payable had the Event of Default not occurred, shall constitute an evasion of the prepayment terms of the Note, as incorporated herein by reference, and shall be deemed to be a voluntary prepayment thereunder and any such payment, to the extent permitted by law, must include the prepayment charge computed in accordance with the terms of the Note.   6.06 Waiver of Section 2822. Borrower hereby waives, to the extent applicable to Borrower, any right or privilege to which it may be entitled under Section 2822 of the California Civil Code or otherwise to designate the portion of the Limited Recourse Obligations Guaranty executed in connection with the Loan (the "Guaranty”) which is to be satisfied by a partial payment (whether voluntary, as a result of judgment or otherwise) of the Loan. In such event, Borrower acknowledges and agrees that the terms and provisions of the Guaranty shall govern.   6.07 Power of Sale and Other Provisions.   For any sale under the power of sale granted by this Security Instrument, Lender, its successors and assigns, may elect to cause the Property or any part thereof to be sold as follows:   (a) Lender may proceed as if all of the Property were real property, in accordance with subparagraph (d) below, or Lender may elect to treat any of the Property which consists of a right in action or which is property that can be severed from the Property without causing structural damage thereto as if the same were personal property, and dispose of the same in accordance with subparagraph     (c) below, separate and apart from the sale of real property, the remainder of the Property being treated as real property.   (b) Lender may cause any such sale or other disposition to be conducted immediately following the expiration of any grace period, if any, herein provided (or immediately upon the expiration of any redemption period required by law) as specified in subparagraph (a) above or Lender may delay any such sale or other disposition for such period of time as Lender deems to be in its best interest. Should Lender desire that more than one such sale or other disposition be conducted, Lender may at its option, cause the same to be conducted simultaneously. or successively on the same day, or at such different days or limes and in such order as Lender may deem to be in its best interest.   (c) Should Lender elect to cause any of the Property to be disposed of as personal property as permitted by subparagraph (a) above, it may dispose of any part hereof in any manner now or -43­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 44 of 58       hereafter permitted by Article 9 of the California Uniform Commercial Code or in accordance with any other remedy provided by law. Both Borrower and Lender shall be eligible to purchase any part or all of such property at any such disposition. Any such disposition may be either public or private as Lender may so elect, subject to the provisions of the California Uniform Commercial Code. Lender shall give Borrower at least ten (10) days' prior written notice of the time and place of any public sale or other disposition of such property or of the time at or after which any private sale or any other intended disposition is to be made, and if such notice is sent to Borrower as provided in subparagraph (k) hereof, it shall constitute reasonable notice to Borrower. (d) Should Lender elect to sell the Property which is real property or which Lender has elected to treat as real property, upon such election Lender or Trustee shall give such Notice of Default and Election to Sell as may then be required by law. Thereafter, upon the expiration of such time and the giving of such Notice of Sale as may then be required by law, Trustee, at the time and place specified in the Notice of Sale, shall sail such Property, or any portion thereof specified by Lender, at public auction to the highest bidder for cash in lawful money of the United States, subject, however, to the provisions of subparagraph (i) hereof. Trustee for good cause may, and upon request of Lender shall, from time to time, postpone the sale by public announcement thereof at the time and place noticed therefor, If the Property consists of several lots or parcels, Lender may designate the order in which such lots or parcels shall be offered for sale or sold. Any person, including Borrower, Trustee or Lender, may purchase at the sale. Upon any sale Trustee shall execute and deliver to the purchaser or purchasers a deed or deeds conveying the property so sold, but without any covenant or warranty whatsoever, express or Implied, whereupon such purchaser or purchasers Shall be let into immediate possession.   (e) In the event of a sale or other disposition of any such property, or any part thereof, and the execution of a deed or other conveyance, pursuant thereto, the recitals therein of facts, such as a default, the giving of notice of default and notice of sale, demand that such sale should be made, postponement of sale, terms of sale, sale, purchaser, payment of purchase money, and any other fact affecting the regularity or validity of such sale or disposition, shall be conclusive proof of the truth of such facts for purposes of such sale, conveyance or other disposition; and any such deed of conveyance shall be conclusive against all persons as to such facts recited therein for purposes of such conveyance.   (f) Lender and/or Trustee shall apply the proceeds of any sale or disposition hereunder to payment of the following: (1) the expenses of such sale or disposition together with Trustee's fees and reasonable attorneys' fees, and the actual cost of publishing, recording, mailing and posting notice; (2) the cost of any search and/or other evidence of title procured in connection therewith and transfer tax on any deed or conveyance; (3) all su!'1s expended under the terms hereof, not then repaid, with accrued interest in the amount provided herein; (4) all other sums secured hereby; and (5) the remainder If any to the person or persons legally entitled thereto.   (g) The acknowledgement of the receipt of the purchase money, contained in any deed of conveyance executed as aforesaid, shall be sufficient to discharge Borrower from all obligations and to evidence the proper application oftne consideration therefor.   (h) Borrower hereby expressly waives any right which it may have to direct the order in which any of the Property shall be sold in the event of any sale or sales pursuant hereto. (i) Upon any sale of the Property, whether made under a power of sale herein granted or pursuant to judicial proceedings, If the holder of the Note is a purchaser at such sale, it shall be entitled to use and apply all or any portion of the indebtedness then secured hereby for or in settlement or payment of all or any portion of the purchase price of the property purchased, and, in such case, this Security Instrument, the Note and documents evidencing expenditures secured hereby shall be presented to the person conducting the sale in order that the amount of said indebtedness so used or applied may be credited thereon as having been paid.   (j) No remedy herein conferred upon or reserved to Trustee or Lender is intended to be exclusive of any other remedy herein or by law provided, but each shall be cumulative and shall be in   -44­   Description: San Bernardino,CA Document-Year.DooID 2005.202686 Page: 45 of 58       addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this instrument to Trustee or Lender, or to which either of them may be otherwise entitled, may be exercised from time to time and as often as may be deemed expedient by Trustee or Lender, and either of them may pursue inconsistent remedies. If there exists additional security for the performance of the obligations secured hereby, the holder of the Note, at its sole option and without limiting or affecting any rights or remedies hereunder, may exercise any of the rights and remedies to which it may be entitled hereunder either concurrently with whatever other rights it may have in connection with such other security or in such order as it may determine.   (iI) Borrower hereby requests that every notice of default and every notice of sale be given in accordance with the provisions of Section 7.05 hereof except as otherwise required by statute. Borrower may, from time to time, change the address to which notice of default and sale hereunder shall be sent by both filing a request therefor, In the manner provided by the California Civil Code, Section 2924b, and sending a copy of such request to Lender, its successors or assigns in accordance with the provisions of Section 7.05 hereof.   6.08 California Uniform Commercial Code. In furtherance of and not in limitation of any other provisions of this Security Instrument, including without limitation Section 2.02(a):   Upon the occurrence of an Event of Default under this Security Instrument, Lender, pursuant to the appropriate provisions of the California Uniform Commercial Code, shall have an option to proceed with respect to both the real property portion of the Property and the Personal Property in accordance with its rights, powers and remedies with respect to such real property, in which event the default provisions of the California Uniform Commercial Code shall not apply. Such option shall be revocable by Lender as to all or any portion of the Personal Property at any time prior to the sale of the remainder of the Property. In such event Lender shall designate Trustee to conduct the sale of the Personal Properly in combination with the sale of the remainder of the Property. Should Lender elect to sell the Personal Property or any part thereof which is real property or which Lender has elected to treat as real property or which may be sold together with the real property as provided above, Lender or Trustee shall give such notice of default and election to sell as may then be required by law. The parties agree that if Lender shall eject to proceed with respect to any portion of the Personal Property separately from such real properly, ten (10) days notice of the sale of the Personal Property shall be reasonable notice. The reasonable expenses of retaking, holding, preparing for sale, selling and the like incurred by Lender shall include, but not be limited to, reasonable attorneys' fees, costs and expenses, and other expenses incurred by Lender.   6.09 Forbearance by Lender Not A Waiver. Borrower waives to the extent permitted by law, notice of election to mature or declare due the whole of the Secured Obligations. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any tight or remedy. The acceptance by Lender of payment of any sum secured by this Security Instrument after the due date of such payment shall not be a waiver of Lender’s right either to require prompt payment when due of all other sums so secured or to declare an Event of Default for failure to make prompt payment The procurement of Insurance or the payment of taxes of other liens or charges by Lender shall not be a waiver of Lender’s right to accelerate the maturity of the Secured Obligations nor shall Lender's receipt of any awards, proceeds or damages under this Security Instrument operate to cure or waive Borrower's default in payment of sums secured by this Security Instrument   6.10 Additional Costs. In furtherance of and not in limitation of any other provisions of this Security Instrument, including without limitation Section 7.09:   Borrower shall pay all reasonable Costs incurred by Lender in connection with the documentation, modification, workout, collection or enforcement of the Loan or any of the Loan Documents (as applicable), including probate, appellate and bankruptcy proceedings, any post-judgment proceedings to collect or enforce any Judgment or order relating to the Loan or any of the Loan Documents (as applicable), and all such Costs shall be included as additional Secured Obligations   Description: San BernardinorCA Document-Year.DocID 2005.202686 Page: 46 of 58       bearing Interest at the Default Rate set forth in the Note until paid. In any action to foreclose the lien hereof or otherwise enforce Lender's rights and remedies hereunder, there shall be allowed and Included as additional Secured Obligations all Costs which may be paid or incurred by or on behalf of Lender. For the purposes hereof 'Costs' means all expenditures and expenses which may be paid or Incurred by or on behalf of Lender including repair costs, payments to remove or protect against liens, attorneys' fees, costs and expenses, receivers' fees, appraisers' fees, engineers' fees, accountants' fees, independent consultants' fees (including environmental consultants), all costs and expenses Incurred in connection with any of the foregoing, Lender's out-of-pocket costs and expenses related to any audit or inspection of the Property, outlays for documentary and expert evidence, stenographers' charges, stamp taxes, publication costs, and costs (which may be estimates as to Items to be expended after entry of an order or judgment) for procuring all such abstracts of title, title searches and examination, titIe insurance policies, and similar data and assurances with respect to title as Lender may deem reasonably necessary either to prosecute any action or to evidence to bidders at any sale of the membership interests in Borrower the true condition of the title to, or the value of, the Property. Further, all 'Costs" shall include such other costs, expenses and fees as may be Incurred by Lender in the protection of the Property and the maintenance of the lien of this Deed of Trust, including, attorneys' fees, costs and expenses in any litigation or proceeding affecting this Deed of Trust, the Note, the other Loan Documents, the Property or the Personal Property, Including probate, appellate, and bankruptcy proceedings, and any post·judgment proceedings to collect or enforce any judgment or order relating to this Deed of Trust or the other Loan Documents, to obtain any court order or the appointment of a receiver to enforce Lender's rights pursuant to Section 564 of the California Code of Civil Procedure and/or Section 2929.5 of the California Civil Code or in preparation for the commencement or defense of any action or proceeding, shall be Immediately due and payable to Lender, with interest thereon at the Default Rate, and shall be secured by this Deed of Trust. This provision Is separate and several, and shall survive the merger of this provision into any judgment.   6.11 Default Rate. The "highest rate permitted under applicable law" referred to In Section 1,03 shall mean the Default Rate (as defined in the Note) if such a rate Is not specified by applicable law.   ARTICLE 7. MISCELLANEOUS   7.01 Amendments. This Instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. 7.02 Borrower Waiver of Rights; Waiver of Automatic Stay.   (a) Borrower waives to the extent permitted by law, (i) the benefit of all laws now existing or that may hereafter be enacted providing for any appraisement before sale of any portion of the Property, (ii) all rights of valuation, appraisement, stay of execution, reinstatement and redemption laws and marshaling in the event of foreclosure of the liens hereby created, (iii) all rights and remedies which Borrower may have or be able to assert by reason of the laws of the state where the Property is located pertaining to the rights and remedies of sureties, (iv) the right to assert any statute of limitations as a bar to the enforcement of the lien of this Security Instrument or to any action brought to enforce the Note or any other obligation secured by this Security Instrument, and (v) any rights, legal or equitable, to require marshaling of assets or to require upon foreclosure sales in a particular order. Lender shall have the right to determine the order in which any or all of the Property shall be subjected to the remedies provided herein. Lender shall have the right to determine the order in which any or all portions of the Secured Obligations are satisfied from the proceeds realized upon the exercise of the remedies provided herein.   (b) WITHOUT LIMITING ANY OF THE FOREGOING SET FORTH IN SUBSECTION (a) ABOVE, BORROWER HEREBY AGREES THAT, IN CONSIDERATION OF LENDER'S AGREEMENT TO MAKE THE LOAN AND IN RECOGNITION THAT THE FOLLOWING COVENANT IS A MATERIAL INDUCEMENT FOR LENDER TO MAKE THE LOAN, IF BORROWER SHALL (b) FILE WITH ANY BANKRUPTCY COURT OF COMPETENT JURISDICTION OR BE THE SUBJECT OF ANY PETITION Description: San BernardinorCA Document-Year.DocID 2005.202686 Page: 47 of 58       UNDER ANY SECTION OR CHAPTER OF THE BANKRUPTCY CODE, OR SIMILAR LAW OR STATUTE: (ii) BE THE SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER THE BANKRUPTCY CODE OR SIMILAR LAW OR STATUTE; (iii) FILE OR BE THE SUBJECT OF ANY PETITION SEEKING ANY REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR OTHER RELIEF FOR DEBTORS; (iv) HAVE SOUGHT OR CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE, RECEIVER, CONSERVATOR, OR LIQUIDATOR; OR (v) BE THE SUBJECT OF AN ORDER. JUDGMENT OR DECREE ENTERED BY ANY COURT OF COMPETENT JURISDICTION APPROVING A PETITION FILED AGAINST ANY BORROWER FOR ANY REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY OR RELIEF FOR DEBTORS. THEN, SUBJECT TO COURT APPROVAL, LENDER SHALL THEREUPON BY ENTITLED AND BORROWER HEREBY IRREVOCABLY CONSENTS TO, AND WILL NOT CONTEST, AND AGREES TO STIPULATE TO RELIEF FROM ANY AUTOMATIC STAY OR OTHER INJUNCTION IMPOSED BY SECTION 362 OF THE BANKRUPTCY CODE OR SIMILAR LAW OR STATUTE (INCLUDING, WITHOUT LIMITATION, REUEF FROM ANY EXCLUSIVE PERIOD SET FORTH IN SECTION 1121 OF THE BANKRUPTCY CODE) OR OTHERWISE AVAILABLE TO LENDER AS PROVIDED IN THE NOTE AND THE LOAN DOCUMENTS, AND AS OTHERWISE PROVIDED BY LAW, AND BORROWER HEREBY IRREVOCABLY WAIVES ITS RIGHT TO OBJECT TO SUCH RELIEF.   7.03 Statements by Borrower. Borrower shall, within ten (10) days after written notice thereof from Lender, deliver to Lender (or any person designated by Lender) a written statement, in form satisfactory to Lender, fully acknowledged, stating the unpaid principal of and interest on the Note and any other amounts secured by this Security Instrument and staling whether any offset, counterclaim or defense exists against such sums and the obligations of this Security Instrument.   7.04 Loan Statement Fees, Lender or its authorized loan servicing agent may impose a service charge for any statement requested by Borrower regarding the Secured Obligations; provided, however, that such amount may not exceed the maximum amount allowed by law at the time request for the statement is made.   7.05 Notices. Whenever Borrower, Trustee or Lender shall desire to give or serve any notice, demand, request or other communication with respect to this Security Instrument, each such notice, demand, request or communication shall be given in witting at the address of the intended recipient set forth below by any of the following means: (a) personal service including, without limitation, service by overnight courier service): (b) electronic communication, whether by telex, telegram or telecopying (If confirmed in writing sent by personal service or by registered or certified, first class mall, return receipt requested); or (c) registered or certified, first class mail, return receipt requested:     If to Lender: ARTESIA MORTGAGE CAPITAL CORPORATION     Issaquah, Washington 98027   Attn: Servicing Department   Fax: (425) 313·1005 BEST & FLANAGAN LLP   225 South Sixth street, Suite 4000   Minneapolis, Minnesota 55402   Attn: Bradley F. Williams   Fax: (812) 339-5897 If to Lender: ARTESIA MORTGAGE CAPITAL CORPORATION     Issaquah, Washington 98027   Attn: Servicing Department   BEST & FLANAGAN LLP     Minneapolis, Minnesota 55402     -47­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 48 of 58 Order: 327283 C'olmrIent:       If to Borrower. CALIFORNIA VALLEY ASSOCIATES 1150 First Avenue, Suite 920 King of Prussia, Pennsylvania 19506 Tel: (610) 68D-3511 Fax: (610) 992-1166   with a copy to: TUPITZA & BRYMAN, P,C. Attorneys for Managers, Inc. 212 West Gay Street West Chester, Pennsylvania 19380 Attn: Jeffrey Bryman Tel: (610) 696-2600 Fax: (610) 344-7199     If to Trustee: COMMONWEALTH LAND TITLE 3131 Camino Del Rio, Suite 1400 San Diego, California 92103 Attn: Anni Fnedertcksen Fax: (619) 686-2181   Such addresses may be changed by notice to the other parties given In the same manner as provided above. Any notice, demand or request sent pursuant to either subsection (a) or (b) hereof shall be deemed received upon such personal service or upon dispatch by electronic means, and, If sent pursuant to subsection (e) shall be deemed received five (5) days following deposit in the mail.   7.06 Captions. The captions or headings at the beginning of each Section hereof are for the convenience onhe parties and are not a part of this Security Instrument.   7.07 Savings Clause; Invalidity of Certain Provisions. Notwithstanding any provisions in the Note or in this Security Instrument to the contrary, the total liability for payments in the nature of Interest, including, without limitation, prepayment charges, default Interest and late fees, shall not exceed the limits imposed by the laws of the state where the Property is located or the United states of America relating to maximum allowable charges of interest. Lender shall not be entitled to receive, collect or apply, as interest on the Secured Obligations, any amount in excess of the maximum lawful rate of interest permitted to be charged by applicable laws. If Lender ever receives, collects or applies as interest such amount which would be excessive, such interest shall be applied to reduce the unpaid principal balance of the Note, and any remaining excess shall be paid over to person or persons legally entitled thereto. Every provision of this Security Instrument is intended to be severable. In the event any term or provision hereof is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable.   7.08 Provisions Regarding Trustees. At any time, or from time to time, without notice therefor and without notice to Borrower, upon written request of Lender and presentation of this Security Instrument and the Note secured hereby for endorsement. and without affecting the personal liability of any person for payment of the Secured Obligations (subject to the limitations on recourse set forth in the Note) or the effect of this Security Instrument upon the remainder of the Property, Trustee [or the one acting] may (i) reconvey any part of the Property, (ii) consent In writing to the making of any map or plat thereof. (iii) join in granting any easement thereon, or (iv) join in any extension agreement or any agreement subordinating the lien or charge hereof.   Trustee shall not be liable for any error of judgment or act done by Trustee, or be otherwise responsible or accountable under any circumstances whatsoever. Trustee shall not be personally liable in case of entry by it or anyone acting by virtue of the powers herein granted it upon the Property for debts contracted or liability or damages incurned in the management or operation of the Property. All monies received by Trustee shall, until used or applied as herein provided, be held in trust for the   -48­   Desar~ption: San Ber.nardino,CA Document-Year.DocID 2005.202686 Page: 49 of 58       purposes for which they were received, but need not be segregated in any manner from any other monies (except to the extent required by law) and Trustee shall be under no liability for interest on any monies received by it hereunder.   Trustee may resign by giving of notice of such resignation in writing to Lender. If Trustee shall die, resign or become disqualified from acting, or shall fail or refuse to exercise its powers hereunder when requested by Lender so to do, or if for any reason and without cause Lender shall prefer to appoint a substitute trustee to act instead of the ol1glnal Trustee named herein, or any prior successor or substitute trustee, Lender shall have full power to appoint a substitute trustee and, if preferred, several substitute trustees in succession who shall succeed to all the estate, rights, powers and duties of the aforenamed Trustee. Upon appointment by Lender and upon recording of the substitution in the land records of the County where the Property Is located, any new Trustee appointed pursuant to any of the provisions hereof shall, without any further act, deed or conveyance, become vested with all the estates, properties, rights, powers and trusts of its predecessor in the rights hereunder with the same effect as if originally named as Trustee herein.   7.09 Subrogation. To the extent that proceeds of the Note are used to pay any outstanding lien. charge or prior encumbrance against the Property, such proceeds have been or will be advanced by Lender at Borrower's request and Lender shall be subrogated to any and all rights and liens held by any owner or holder of such outstanding liens, charges and prior encumbrances, irrespective of whether said liens, charges or encumbrances are released.   7.10 Costs and Expenses; Attorneys' Fees for Preparation and Enforcement   (a) Borrower acknowledges and confirms that Lender shall Impose certain administrative processing and/or commitment fees in connection with (I) the extension, renewal, modification, amendment and termination of the Loan, (ii) the release or substitution of collateral therefor, (10) obtaining certain consents, waivers and approvals with respect to the Property, or (iv) the review of any Lease or proposed Lease or the preparation or review of any subordination, non-disturbance and attornment agreement (the occurrence of any of the above shall be called an "Event”. Borrower further acknowledges and confirms that it shall be responsible for the payment of all costs of reappraisal of the Property or any part thereof, whether required by law, regulation, Lender or any governmental or quasi­governmental authority. Borrower hereby acknowledges and agrees to pay, immediately, with or without demand, all such fees (as the same may be increased or decreased from time to time), and any additional fees of a Similar type or nature which may be imposed by Lender from time to time, upon the occurrence of any Event or otherwise. Whenever it is provided for herein that Borrower pay any costs and expenses, such costs and expenses shall include, but not be limited to, all attorneys' fees and disbursements of Lender.   (b) Borrower shall pay all attorneys' fees Incurred by Lender in connection with (i) the preparation of the Note, this Security Instrument and the other Loan Documents, and (ii) the Items set forth In Section 7.08(a} above. In addition, Borrower shall pay to Lender on demand any and all expenses, including, without limitation, attorneys' fees and costs, incurred or paid by Lender in protecting its interest in the Property or in collecting any amount payable hereunder or in enforcing its rights hereunder with respect to the Property (including, without limitation, commencing any foreclosure action), whether or not any legal proceeding is commenced hereunder or thereunder, together with interest thereon at the Default Rate from the date paid or Incurred by Lender until such expenses are paid by Borrower. As used in this Security Instrument, the terms 'attorneys' fees' or "attorneys' fees and costs' or "attorneys' fees, costs and expenses· shall mean the reasonable attorneys' fees and the costs and expenses of counsel to Lender (Including, without limitation, in-house counsel employed by Lender), which may include, without limitation, printing, duplicating, telephone, fax, air freight and other charges, and fees billed for law clerks, paralegals, librarians. expert witnesses and others not admitted to the bar but performing services under the supervision of an attorney and all such fees, costs and expenses incurred with respect to trial, appellate proceedings, arbitrations, out-of-court negotiations, workouts and   -49­   Desar~ption: San Ber.nardino,CA Doaument-Year.DocID 2005.202686 Page: 50 of 58       settlements, and bankruptcy or Insolvency proceedings (including, without limitation, seeking relief from stay in bankruptcy proceedings), and whether or not any action or proceeding is brought or is concluded with respect to the matter for which such fees, costs and expenses were incurred, and whether or not the Lender 15 the prevailing party. Lender shall also be entitled to its attorneys' fees, costs and expenses incurred in any post-judgment action or proceeding to enforce and collect the judgment. In the event of any litigation concerning the enforcement, validity or interpretation of the Loan Documents, the prevailing party shall be entitled to recover and the losing party shall pay, all costs, charges and expense (including attorneys' fees incurred by the prevailing party, whether or not the suit proceeds to final judgment. This Section 7.10 is separate and several, shall survive the discharge of this Security instrument, and shall survive the merger of this Security Instrument into any judgment on this Security Instrument.   7.11 No Merger of Lease. If both the Borrower's and tenant's estate under any Lease Dr any portion thereof which constitutes a part of the Property shall at any time become vested in one owner, this Security Instrument and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger unless Lender so elects as evidenced by recording a written declaration so stating, and, unless and until Lender so elects, Lender shall continue to have and enjoy all of the rights and privileges of Lender as to the separate estates. In addition, upon the foreclosure of the lien created by this Security Instrument on the Property pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Property shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Lender or any purchaser at such foreclosure sale shall so elect No act by or on behalf of Lender or any such purchaser shall constitute a termination of any Lease or sublease unless Lender or such purchaser shall give written notice thereof to such tenant or subtenant.   7.12 Governing Law. This Security Instrument shall be governed by and construed in accordance with the laws of the State where the Property is located.   7.13 Joint and Several Obligations. If this Security Instrument Is signed by more than one party, all obligations herein contained shall be deemed to be the joint and several obligations of each party executing this Security Instrument. Any married person signing this Security Instrument agrees that recourse may be had against community assets and against his or her separate property for the satisfaction of all obligations contained herein.   7.14 Interpretation. In this Security Instrument the singular shall Include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires.   7.15 Reconveyance by Trustee, Upon written request of Lender Slating that all sums secured hereby have been paid, and upon surrender of this Security Instrument and the Note to Trustee for cancellation and retention and upon payment by Borrower of Trustee's fees, Trustee shall reconvey to Borrower, or to the person or persons legally entitled thereto, without warranty, any portion of the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or persons legally entitled thereto." Such grantee shall pay Trustee a reasonable fee and Trustee's costs Incurred in $0 reconveying the Property.   7.18 Counterparts. This document may be executed and acknowledged in counterparts, all of which executed and acknowledged counterparts shall together constitute a single document. Signature and acknowledgment pages may be detached from the counterparts and attached to a single copy of this document to physically form one document, which may be recorded.   7.17 Effect of Security Agreement; Fixture Filing. To the extent of the existence of any Personal Property encumbered by this Security Instrument, this Security instrument constitutes both (a) a security agreement Intended to create a security Interest in such Personal Property in favor of Lender; and, (b) a financing statement filed as a fixture filing in the real estate records of the county in which the   -50­   Descr£ption: San Ber.nar~no,CA Doaument-Year.DocID 2005.202686 Page: 51 of 58       Property is located with respect to any and all Fixtures Included within the Personal Property with respect to any goods or other personal property that may now be or hereafter become sue/) fixtures. The information in the subsections below this paragraph is provided in connection with the filing of this Security Instrument as a financing statement as referred to above, and the Borrower hereby represents and warrants sue/) Information to be true and complete as of the date Of this Security Instrument. This Security Instrument shall be self-operative with respect to sue/) Personal Property, but Borrower shall, upon the request of Lender, execute and deliver to Lender, in form and content satisfactory to Lender, sue/) financing statements, descriptions of property and sue/) further assurances as Lender may determine from time to time to be necessary or desirable to create, perfect, continue and preserve the lien and encumbrances hereof and the security interest granted herein upon and in the Personal Property specifically described herein, or generally described and Intended to be the subject of the security interest, lien and encumbrance hereby created, granted and conveyed. Lender, at the expense of Borrower, may cause such statements, descriptions and assurances as provided in this Security Instrument to be recorded and re-recorded, filed and refiled, at such times and in such places as may be required or permitted by law to so create, perfect and preserve the lien and encumbrance hereof upon all of the Personal Property. By signing this Security Instrument, Borrower authorizes Lender to file sue/) financing statements before, on or after the date hereof, and to file such amendments or continuation statements, all as Lender determines necessary or desirable from time to time to perfect or continue the lien of the lender's security interest in the Personal Property. (a) The Borrower is the record owner of the real estate described in this Security Instrument. The name and mailing address of the record owner of the real estate described In this Security Instrument is set for the In the first paragraph of this Security Instrument (b) The name, mailing address, type of organization and state of formation of the Debtor (Borrower') is set forth in the first paragraph of this Security Instrument. The Organizational Identification Number of the Borrower is CA 198618900006.   (c) The name and mailing address of the Secured Party (Lender) is:   ARTESIA MORTGAGE CAPITAL CORPORATION 1180 NW Maple Street, Suite 202 Issaquah, Washington 98027 Attn: Servicing Department   (d) This document covers goods which are or are to become fixtures. 7.18 Spouse's Separate Property. Any Borrower who is a married person expressly agrees that recourse may be had against his or her separate property, Subject to the limitations on recourse set forth In Section 1 D of the Note.   7.19 Offsets. No Secured Obligations shall be deemed to have been offset or to be offset or compensated by all or part of any claim, cause of action, counterclaim or cross claim, whether liquidated or unliquidated, which Borrower or any successor to Borrower now or hereafter may have or may claim to have against lender; and, in respect to the Indebtedness now or hereafter secured hereby, Borrower waives, to the fullest extent permitted by law, the benefits of any law which authorizes or permits sue/) offsets.   7.20 Construction of this Security Instrument, Borrower and Lender agree that this Security Instrument shall be Interpreted In a fair, equal and neutral manner as to each of the parties.   7.21 Clerical Error. In the event Lender at any time discovers that the Note, any other note secured by this Security Instrument, this Security Instrument or any other Loan Document contains an error that was caused by a clerical mistake, calculation error, computer malfunction, printing error or similar error, Borrower agrees, upon notice from Lender, to re-execute any documents that are necessary   -51­   Description: San Ber.nardino,CA Doaument-Year.DocID 2005.202686 Page: 52 of 58       to correct any such error(s}. Borrower further agrees that lender win not be liable to Borrower for any damages incurred by Borrower that are directly or indirectly caused by any such error.   7.22 lost, Stolen, Destroyed or Mutilated loan Documents. In the event of the loss, theft or destruction of the Note, any other note secured by this Security Instrument or any other Loan Document, or in the event of the mutilation of any of the Loan Documents, upon Lender's surrender to Borrower of the mutilated Loan Document, Borrower shall execute and deliver to Lender a loan Document in form and content identical to, and to serve as a replacement of, the lost, stolen, destroyed, or mutilated Loan Document and such replacement shall have the same force and effect as the lost, stolen, destroyed, or mutilated Loan Document, and may be treated for all purposes as the original copy of such Loan Document   7.23 Time is of the Essence. Time is of the essence in the performance of each provision of this Security Instrument.   7.24 Legislation Affecting Lender's Rights. If enactment or expiration of applicable laws has the effect of rendering any material provision of the Note or this Security Instrument unenforceable according to its terms, Lender, at its option, may demand immediate payment in full of all sums secured by this Security Instrument and may invoke any remedies permitted under this Security Instrument.   7.25 RESERVED.   7.26 Exhibits and Riders. The exhibits and riders, if any, attached hereto are incorporated herein by reference and made a part hereof.   7.27 Successors and Assigns. Without in anyway limiting or affecting the provisions of Section 1.15 hereof, all of the terms, covenants, provisions and conditions herein contained shall be for the benefit of, apply to, and bind the heirs, successors and assigns of the Borrower and the Lender, and are intended and shall be held to be covenants running with the Land.   7.28 Declaration of No Offset. The Borrower represents and warrants to the Lender that the Borrower has no knowledge of any offsets, counterclaims or defenses to the principal of the Secured Obligations, or to any part thereof. or the interest thereon, either at law or in equity.   7.29 Entire Agreement. This Security Instrument and the other loan Documents contain the entire agreement between the Borrower and the Lender relating to or connected with the Loan. Any other agreements relating to or connected with the Loan not expressly set forth in this Security Instrument and/or other Loan Documents are null and void and superseded in their entirety by the provisions of this Security Instrument and the other Loan Documents.   7.30 No Joint Venture or Partnership. The relationship of the Borrower and the Lender created hereby is strictly of debtor-creditor and nothing contained herein or in any other documents or instrument secured hereby shall be deemed or construed to create a partnership or joint venture between Borrower and lender.   7.31 No Lender Obligations.   (a) Notwithstanding any of the provisions contained herein with respect to Lender taking a security interest in the Leases, Lender is not undertaking the performance of any obligations under the Leases.   (b) By accepting or approving anything required to be observed, performed or fulfilled or to be given to Lender pursuant to this Security Instrument, the Note or the other Loan Documents, including without limitation, any officer's certificate. balance sheet, statement of profit and loss or other financial statement, survey, appraisal, or insurance policy, Lender shall not be deemed to have warranted, -52­   Description: San Bernardino7 CA Document-Year.DocID 2005.202686 Page: 53 of 58       consented to, or affirmed the sufficiency, the legality or effectiveness of same, and such acceptance or approval thereof shall not constitute any warranty or affirmation with respect thereto by Lender.   7.32 Estoppel Certificates. After request by Lender, Borrower, within ten (10) days, shall furnish Lender or any proposed assignee with a statement, duly acknowledged and certified, setting forth the amount of the original principal amount of the Note, the unpaid principal amount of the Note, the rate of interest of the Note, the terms of payment and maturity date of the Note, the date Installments of interest and/or principal were last paid, that, except as provided in such statement, there are no defaults or events which with the passage of time or the giving of notice or both, would constitute an Event of Default under the Note or this Security Instrument, that the Note and this Security Instrument are valid, legal and binding obligations and have not been modified or if modified, giving particulars of such modification, whether any offsets or defenses exist against the Secured Obligations and, if any are alleged to exist, a detailed description thereof, that all Leases are In full force and effect and (provided the Property is not a residential multifamily property) have not been modified (or if modified, setting forth all modifications), the date to which the Rents thereunder have been paid pursuant to the Leases, whether Dr not, to the best knowledge of Borrower, any of the tenants under the Leases are In default under the Leases, and, if any of the tenants are In default, setting forth the specific nature of all such defaults, the amount of security deposits held by Borrower under each Lease and that such amounts are consistent with the amounts required under each Lease, and as to any other matters reasonably requested by Lender and reasonably related to the Leases, the Secured Obligations. the Property or this Security Instrument   7.33 Renewals and Extensions. Any renewal or extension, modification or amendment of the Note and/or this Security Instrument will not operate to release, in any manner, the liability of Borrower or any other party liable for the Loan and their respective successors in interest.   7.34 Incorporation. The terms and conditions of all the other Loan Documents are   [Signatures on Following Pages}].   -53­   Description: San BernardinorCA Document-Year.DocID 2005.202585 Page: 54 of 58       IN WITNESS WHEREOF, Borrower has executed this Security Instrument as of the day   [ADD WITNESS IF REQUIRED.] BORROWER:   CALIFORNIA VALLEY ASSOCIATES, a New York limited partnership   By: Managers, Inc., a Pennsylvania corporation, General Partner   By:       -54­   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 55 of 58       Or Commonwealth   CERTIFICATION PURSUANT TO GOVERNMENT CODE SECTION 27361.7   I certify under penalty of perjury that the notary seal on the document to which this statement is attached reads as follows:     Name ofNotary: Commission Number: NancyJo Mosser 00037817 Date Commission Expires October 27, 2005 County where bond is filed: N/A Manufacturer/Vendor Number. N/A Place of Execution: Volusia County, FL Date: March 8, 2005 NancyJo Mosser 00037817 Date Commission Expires October 27, 2005 N/A N/A Place of Execution: Volusia County, FL Date: March 8, 2005 March 22, 2005 Date     Place of Execution: Margaret J. Craft San Diego, California Type or Print Name   Description: San Bernardino,CA Document-Year.DocID 2005.202686 Page: 56 of 58       EXHIBIT A LEGAL DESCRIPTION OF PROPERTY The Property is located in San Bernardino County, California, and is legally described as follows:   All that certain real property situated In the County of San Bernardino, State of California, described as follows:   Parcel I, 2, 3, 5, 6, 7 and 8 of Parcel Map No. 6163, in the Town of Yucca Valley, County of San Bernardino, Stale of California, as per plat recorded in Book 60 of Parcel Maps, Pages 57 through 62 inclusive records of said County.   EXCEPTING from Parcels 5 and 6 those portions conveyed to San Bernardino County Flood Control Distrid by deed recorded March 5, 1981 as Instrument No. 81-047682, Official Records of said County.   Together with those non exclusive easements for ingress, egress, automobile parking, public utilities, pedestrian movement, loading and unloading, over, across, through and under the 'Common Area" as said Common Area is defined in that certain Declaration of Establishment of Protective Covenants, Conditions and Restrictions and Grants of Easements dated October 29, 1979 and recorded on November 1,1979, In Book 9805, Page 112, of Official Records and as such Common Area is shown on Exhibit ·C" attached thereto.   And together with those non exclusive easements for Ingress, egress, pedestrian walkways and vehicular parking over and across the Common Area of Lots 66 and 67 of Tract No. 4856, In the County of San Bernardino, State of California, as per map recorded in Book 70 of Maps, Pages 94 thru 97 inclusive in the office of the County Recorder of said County as "Exed" on a map attached to Exhibit ·C" in that certain instrument entitled 'Reciprocal Easement Agreement' and recorded July 13, 1979 in Book 9727, Page 344.   And together with those non-exclusive easements for driveways, sidewalks and walkways over the Common Areas of Parcel No. 1 of Parcel Map No. 5947, in the County of San Bernardino, State of California, as per map recorded in Book 56 of Parcel Maps, Pages 57 and 58, records of said County, and a 10 foot wide utility easement over the Northerly 10 feet of said Parcel No.1 as contained in that certain Mutual Parking and Access Agreement recorded on February 17, 1981 as Instrument No. 81­033496, Official Records of said County.   Excepting therefrom that portion of said land, as shown in Partial Reconveyance recorded May 9, 1996 as Instrument No. 19960163747 of Official Records, and more particularly descr1bed as follows:   Parcel B of Parcel Map 6163, in the Town of Yucca Valley, County of San Bernardino, State of California, as per map recorded in Book 60. Page(s) 57 through 62, Inclusive of Parcel Maps, in the office of the County Recorder of said County.   parking, utilities, pedestrian movement, loading and unloading, over, across, through and under the "Common Area" as said Common Area is defined in that certain Declaration Establishment of Protection Covenants, Conditions and Restrictions and Grants of Easements dated October 29, 1979, and recorded on November 1, 1979, in Book 9805, Page(s) 112, Official Records and as such Common Area is shown on Exhibit "C”: attached thereto.   And together with those non exclusive easements for ingress, egress, pedestrian walkways and vehicular palll:ing over and across the Common Area of Lots 66 and 67 of Tract 4856, in the San Bernardino, State of California, as per map recorded in Book 70, Page(s) 94 thru 97, of Maps, inclusive in the office of the County Recorder of said Counly as "Exed" on a map attached 10 Exhibit "C· in that   -55­   Description: San Ber.nardino,CA Document-Year.DocID 2005.202686 Page: 57 of 58       v •• .. certain instrument entitled "reciprocal easement agreement" and recorded July 13, 1979, in Book 9727, Page 344, Official Records.   And together with those non-exclusive easements for driveways, sidewalks, and walkways over the Common Areas of Parcel 1 of Parcel Map 5947, In the County of San Bernardino, State of California, as per map recorded In Book 56 of Parcel Maps, Pege(s) 57 and 58, Records of said County, and a 10.00 foot wide utility easement over the Northerly 10.00 feet of said Parcel 1 as contained in that certain mutual parking and access agreement recorded on February 17, 1981, as Instrument No. 81­033496, Official Records.   -56­   Description: San Bernardino,CA Document~Year.DocID 2005.202686 Page: 58 of 58        

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported):January 3, 2011 Tutor Perini Corporation (Exact name of registrant as specified in its charter) Massachusetts (State or other jurisdiction of incorporation or organization) 1-6314 (Commission file number) 04-1717070 (I.R.S. Employer Identification No.) 15901 Olden Street, Sylmar, California 91342-1093 (Address of principal executive offices) (Zip code) Registrant’s telephone number, including area code: (818) 362-8391 None (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 7.01.Regulation FD Disclosure OnJanuary 3, 2011, Tutor Perini Corporation (the "Company") completed the purchase of all of the outstanding capital stock of Fisk Acquisition, Inc. ("Fisk"), the parent company of Fisk Electric Company anda Delaware corporation, (the "Acquisition"), pursuant to the terms of a Stock Purchase Agreement, dated January 3, 2011, by and among the Company, Fisk and Larry C. Brookshire, the sole shareholder of Fisk (the "Shareholder"). The aggregate purchase price was $105 million (subject to a post closing net worth adjustment). Additionally, the Shareholder is entitled to additional consideration in the form of an earn-out capped at an aggregate of $15 million based on Fisk's performance over the next three years. On January 3, 2011, the Company issued a press release announcing the closing of the Acquisition. A copy of the press release isfurnishedas Exhibit 99.1 to this Current Report on Form 8-K. Item 9.01.Financial Statements and Exhibits (d) Exhibits. 99.1 Press Release of Tutor Perini Corporation datedJanuary 3, 2011. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: January 4, 2011 Tutor Perini Corporation By: /s/Kenneth R. Burk Kenneth R. Burk Executive Vice President and Chief Financial Officer

Exhibit 10.1 July 6, 2005 Edward F. McKernan 5430 Chelsen Wood Dr. Duluth, Georgia 30097 Dear Mr. McKernan: This letter will confirm the mutual understandings and agreements of you and Global Preferred Holdings, Inc. (“GPH”) relating to the termination of your employment with GPH and the services to be provided during your transition period. This letter agreement supplements and, as specifically provided by certain terms herein, amends, the following documents: (i) Employment Agreement (Chief Executive Officer) between You and the Company dated January 1, 2002 (the “Employment Agreement”); (ii) First Amendment to Employment Agreement of Edward F. (sic) McKernan dated April 1, 2003; (iii) letter from the Company to you dated March 12, 2004; (iv) Second Amendment to Employment Agreement of Edward F. McKernan dated May 26, 2004; (v) Third Amendment of the Employment Agreement of Edward F. McKernan dated January 1, 2005; and (vi) letter from the Company to you dated January 28, 2005 ((i) – (vi) collectively the “Employment Documents”). Except as otherwise provided herein, the terms of the Employment Agreement shall remain in full force and effect until the Separation Date (as defined herein) provided, however, and to the extent any such provisions of the Employment Agreement are intended to survive the termination of the Employment Agreement pursuant to the terms of the Employment Agreement or the Separation and Release Agreement (as defined below), such provisions shall survive the Separation Date. In consideration of the mutual covenants of the parties contained herein, the undersigned parties agree as follows:   (1)   Separation Date. Your employment with GPH and each of its subsidiaries and affiliates shall terminate on August 19, 2005 (the “Separation Date”). The parties agree that such termination shall be pursuant to Section 4(F)(i) of the Employment Agreement (the “Terminating Provision”). You and GPH mutually waive any rights to any notices or cure periods with respect to the termination of the Employment Agreement pursuant to the Terminating Provision. GPH agrees not to reduce your salary or benefits from those levels currently payable or in place as of the date hereof pursuant to the Employment Agreement between the date hereof and the Separation Date.   (2)   Separation Benefits. It is mutually agreed and acknowledged that in accordance with the termination of the Employment Agreement, pursuant to the Terminating Provision, and subject to the terms hereof and the terms of the Employment Agreement, GPH shall pay you, subject to the terms of the Employment Agreement and the Separation and Release Agreement in the form attached hereto as Exhibit A (the “Separation and Release Agreement”), the amounts (the “Separation Benefits”) described in Section A(1) of the Separation and Release Agreement, except as such amounts relate to prorated Bonus payments, which are addressed in Section 3 below. As the sole condition precedent to your receiving the Separation Benefits from GPH, on or after the Separation Date you must first sign the Separation and Release Agreement. Except for the satisfaction of the sole condition in the preceding sentence, the Separation Benefits, other than the prorated Bonus payments, which are addressed in Section 3 below, are not subject to the discretion of the Board of Directors.   (3)   Prorated Bonus. Subject to your satisfactory provision of your Transition Duties (as described on Exhibit B hereto) through the Separation Date, as determined by the Board of Directors in its discretion and in good faith, GPH shall pay you a pro-rata 2005 annual bonus of $55,500 pursuant to Section 2(B) of the Employment Agreement and the Separation and Release Agreement.   (4)   Directors and Officers Indemnity and Insurance. At your request, GPH agrees to provide to you copies of GPH’s Certificate of Incorporation and Bylaws and any in force D&O insurance policies applicable to the Company and its officers and directors.   (5)   Capstan International Acquisitions, LLC. You have advised GPH, and GPH hereby acknowledges its understanding that beginning today, you are and shall continue be a member, manager and employee of Capstan International Acquisitions, LLC, a Georgia limited liability company (“Capstan”) principally involved in the acquisition and management of, and providing services to, enterprises primarily engaged in the business of insurance (the “Capstan Project”). GPH agrees that your involvement in the Capstan Project beginning today including, but not limited to, (a) the organization, capitalization and operation of Capstan, (b) your employment by Capstan or any of its subsidiaries and (c) any actions taken by you on behalf of Capstan shall not constitute a breach of Section 1(C) of your Employment Agreement or under any policies and procedures established by GPH between today and the Separation Date or at any time after the Separation Date; provided that (a) such actions do not limit or adversely affect your performance of your Transition Duties through the Separation Date; (b) you do not breach any fiduciary duty you owe to GPH, and (c) you do not violate any of the terms of this Agreement or your Employment Agreement (other than Section 1(C)), as amended by this Letter Agreement.   (6)   Amendments to Employment Agreement. The information on Exhibit B to the Employment Agreement is deleted and the information on the attached Exhibit B is deemed substituted therefore (the “Transition Duties”). Section 7 of the Employment Agreement is deleted in its entirety and replaced with the following in its entirety: 7. Restrictive Covenants. You acknowledge that the restrictions contained in this Section 7 are reasonable and necessary to protect the legitimate business interests of the Company, and will not impair or infringe upon Your right to work or earn a living after Your employment with the Company ends. A. Confidential Information. You represent and warrant You are not subject to or in breach of any non-disclosure agreement, including any agreement concerning trade secrets or confidential information owned by any other party, which relate to any information you may use in performing your duties for the Company or the observance of which would impair your ability to perform your duties for the Company. You agree that except in connection with your participation in Capstan, or made possible by that certain Asset and Stock Purchase Agreement by and between the Capstan and the Company You will not: (i) use, disclose or reverse engineer the Trade Secrets or the Confidential Information, except as authorized by the Company; (ii) during Your employment with the Company, use or disclose (a) any confidential information or trade secrets of any former employer or third party, or (b) any works of authorship developed in whole or in part by You during any former employment or for any other party, unless authorized in writing by the former employer or third party; or (iii) upon Your resignation or termination (a) except as provided in the following paragraph of this Agreement, retain Trade Secrets or Confidential Information, including any copies existing in any form (including electronic form), which are in Your possession or control, or (b) destroy, delete or alter the Trade Secrets or Confidential Information without the Company’s consent. Notwithstanding anything to the contrary herein, you shall be permitted to keep copies of the Work Product listed on Exhibit C, required to be maintained by certified actuaries as such requirements are set forth in the Actuarial Standards of Practice established by the Actuarial Standards Board from time to time. This provision in no way transfers ownership of the Work Product to you or diminishes your other obligations pursuant to this Section 7(A), concerning the use, disclosure or reverse engineering of the Trade Secrets or the Confidential Information. The obligations under this Section 7A shall: (i) with regard to the Trade Secrets, remain in effect as long as the information constitutes a trade secret under applicable law, and (ii) with regard to the Confidential Information, remain in effect during the Restricted Period. B. [INTENTIONALLY DELETED] C. Non-Recruit of Employees. You agree that during the Restricted Period, You will not, directly or indirectly, solicit, recruit or induce any Employee to (a) terminate his or her employment relationship with the Company or (b) work for any other person or entity engaged in the Business, provided that following the date of termination of this Agreement, the term “Employee” referred to in this Section 7(C) and defined in Exhibit A of this Agreement shall refer only to Caryl Shepherd, Rebbeca Turner and any new employee employed by the Company during the Restricted Period. Sections 8, 9 and 10 of the Employment Agreement shall have no further force or effect following the date hereof. (7)       Resignation as Officer. By your signature below, you hereby resign as an officer of GPH and all subsidiaries and affiliates, effective the date hereof. Upon request by GPH or its counsel, you agree to execute and deliver a separate written resignation, effective as of the date hereof.   (8)   Survival; Assignment. Except as hereby modified, the Employment Agreement, as previously amended, shall remain in full force and effect pursuant to its terms. The obligations of GPH pursuant to this letter shall terminate upon execution and delivery of the Separation and Release Agreement by you and GPH, except as to the terms of Section 6 above, which shall be continued by operation of Paragraphs B.1 and C.7 of the Separation and Release Agreement. The parties acknowledge and agree that GPH may assign or transfer its rights and obligations under the Employment Agreement and this letter to any entity created as a successor to GPH in connection with the liquidation and dissolution of GPH. Please sign in the space indicated below to indicate your agreement to these terms. Very truly yours, Joseph F. Barone Chairman, Board of Directors Global Preferred Holdings, Inc. Agreed to and Accepted:       Mr. Edward F. McKernan 1 EXHIBIT A Form of Separation and Release Agreement 2 EXHIBIT B Transition Duties Edward F. McKernan shall provide support and transition assistance, as reasonably requested by management or the Board of Directors of the Company, which may include, without limitation, support in preparation of the Form 10-Q for the quarter ending June 30, 2005 and pro forma financials to be filed as an amendment to the Form 8-K filed on May 31, 2005, assistance in transitioning relationships with auditors and assistance in transitioning support of cash flow projections and other matters previously managed by Mr. McKernan. If GPH determines that continued execution of SEC filings by Mr. McKernan must be obtained by GPH, then the Company and Mr. McKernan will negotiate in good faith to develop a mutually acceptable agreement with respect to the manner in which such executions may be obtained. Mr. McKernan will cooperate with the Company to transfer all of the Company’s physical and electronic files and data in Mr. McKernan’s possession to Ms. Shepherd, Ms. Turner or another representative of the Company appointed by the Board of Directors with such transfer to be completed prior to the Separation Date. 3 EXHIBIT C Work Product Work Product shall include supporting data and copies of the following documents (electronic or otherwise) developed while employed by the Company:   •   RFP’s / Financing and Analysis (e.g., financial reinsurance),   •   Regulatory filings,   •   Financial projections,   •   Feasibility studies,   •   Financial analysis   •   Retention analysis and studies,   •   Public presentations,   •   Capital and/or surplus analyses,   •   Reserve calculations and/or analysis (GAAP, Gross Premium, Stat and Tax),   •   Product development,   •   Asset / liability analysis and asset segmentation,   •   Experience analysis (mortality, lapses, expense, distribution, demographics, etc.),   •   Reinsurance treaties and supporting analysis,   •   Correspondence with any expression of an opinion, recommendation, work process, data reference, qualification reference, etc.,   •   Engagement letters,   •   Mathematical models (e.g., DAC amortization, option analysis),   •   Embedded value analysis,   •   DAC unlocking models,   •   DAC tax analysis,   •   Recapture analysis, and   •   “Report Cards” 4

  EXHIBIT 10.5 GERMAN FORM THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SCOTTS MIRACLE-GRO COMPANY AWARD AGREEMENT FOR EMPLOYEES [FORM OF AWARD] AWARDED TO [GRANTEE’S NAME] ON [GRANT DATE] The Scotts Miracle-Gro Company (“Company”) and its shareholders believe that their business interests are best served by ensuring that you have an opportunity to share in the Company’s business success. To this end, the Company adopted and its shareholders approved The Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan (“Plan”) through which key employees, like you, may acquire (or share in the appreciation of) common shares of the Company. We cannot guarantee that the value of your Award (or the value of the common shares you acquire through an Award) will increase. This is because the value of the Company’s common shares is affected by many factors. However, the Company believes that your efforts contribute to the value of the Company’s common shares and that the Plan (and the Awards made through the Plan) is an appropriate means of sharing with you the value of your contribution to the Company’s business success. This Award Agreement describes the type of Award that you have been granted and the conditions that must be met before you may receive the value associated with your Award. To ensure you fully understand these terms and conditions, you should:   •   Read the Plan and the Plan’s Prospectus, as supplemented, carefully to ensure you understand how the Plan works;     •   Read this Award Agreement carefully to ensure you understand the nature of your Award and what you must do to earn it; and     •   Contact [Contact’s Name at Company], [Contact’s Title] at [Telephone Number] if you have any questions about your Award. Or, you may send a written inquiry to the address shown below: The Scotts Miracle-Gro Company Attention: [Contact’s Name at Company] [Contact’s Title] 14111 Scottslawn Road Marysville, Ohio 43041 You must return a signed copy of this Award Agreement no later than [__ Days Post Grant Date] to: [Third Party Administrator] Attention: [TPA Contact’s Name] [Contact’s Address] [TPA Telephone Number]     GERMAN FORM If you do not do this, your Award will be forfeited and you will not be entitled to receive anything on account of this Award.     GERMAN FORM Description of Your Nonqualified Stock Options You have been awarded Nonqualified Stock Options (or “NSOs”) to purchase [Number Granted] common shares of the Company. You may purchase one of the Company’s common shares for each NSO, but only if you pay US $[Price] (“Exercise Price”) for each common share you purchase, you exercise the NSOs on or before [Expiration Date] (“Expiration Date”) and you meet the terms and conditions described in this Award Agreement, the Plan and the Prospectus, as supplemented. You also must arrange to pay any taxes due on exercise using one of the procedures described later in this Award Agreement. Limits on Exercising Your NSOs Normally, your NSOs will vest (and become exercisable) on [Vesting Date] but only if you are actively employed by the Company or any Subsidiary or Affiliate (as defined in the Plan) on [Vesting Date] and all other conditions described in this Award Agreement, the Plan and the Prospectus, as supplemented, are met. This does not mean that you must exercise your NSOs on this date; this is merely the first date that you may do so. However, your NSOs will expire unless they are exercised on or before the Expiration Date ([Expiration Date]). There are some special situations in which your NSOs may vest earlier. These are described later in this Award Agreement. At any one time, you may not exercise NSOs to buy fewer than 100 common shares of the Company (or, if smaller, the number of your outstanding vested NSOs). Also, you may never exercise an NSO to purchase a fractional common share of the Company; NSOs for fractional common shares will always be redeemed for cash. Exercising Your NSOs After they vest, you may exercise your NSOs by completing an Exercise Notice. A copy of this Exercise Notice is attached to this Award Agreement. Also, a copy of this Exercise Notice and a description of the procedures that you must follow to exercise your NSOs are available from [Third Party Administrator] at [TPA Telephone Number] or at the address shown below. You may use one of three methods to exercise your NSOs and to pay any taxes related to that exercise. You will decide on the method at the time of exercise. Cashless Exercise and Sell: If you elect this alternative, you will be deemed to have simultaneously exercised the NSOs and to have sold the common shares underlying those NSOs. When the transaction is complete, you will receive cash (but no common shares of the Company) equal to the difference between the aggregate value of the common shares deemed to have been acquired through the exercise minus the NSOs’ aggregate exercise price and related taxes. Combination Exercise: If you elect this alternative, you will be deemed to have simultaneously exercised the NSOs and to have sold a number of those common shares with a value equal to the NSOs’ aggregate exercise price and related taxes. When the transaction is complete, the balance of the common shares subject to the NSOs you exercised will be transferred to you.     GERMAN FORM Exercise and Hold: If you elect this alternative, you must pay the full exercise price plus related taxes (in cash, a cash equivalent or in common shares of the Company having a value equal to the exercise price and which you have owned for at least six months before the exercise date). When the transaction is complete, you will receive one common share for each NSO exercised. Before choosing an exercise method, you should read the Prospectus, as supplemented, to ensure you understand the federal income tax effect of exercising your NSOs and of the exercise method you choose.      If you do not elect one of these methods, we will apply the Cashless Exercise and Sell method described above. Tax Treatment of Your NSOs The federal income tax treatment of your NSOs is discussed in the Plan’s Prospectus, as supplemented. General Terms and Conditions You May Forfeit Your NSOs if Your Employment Ends Normally, you may exercise your NSOs after they vest and before the Expiration Date ([Expiration Date]). However, to the extent permitted by law, your NSOs may be cancelled earlier than the Expiration Date if you terminate employment before [Vesting Date]. [a] If your employment is terminated for “cause” (as defined in the Plan), the NSOs will expire on the date your employment ends; or [b] If your employment is terminated because of your [i] death or [ii] disability (as defined in the Plan), the NSOs will expire on the earlier of the Expiration Date or 12 months after you terminate; or [c] If your employment is terminated after you have reached either [i] age 55 and completed at least 10 years of employment or [ii] age 62 regardless of your years of service, the NSOs will expire on the earlier of the Expiration Date or 12 months after you terminate; or [d] If your employment is terminated for any reason other than “cause,” death or disability, your NSOs will expire on the earlier of the Expiration Date or 90 days after you terminate. Note: it is your responsibility to keep track of when your NSOs expire. You May Forfeit Your NSOs if You Engage in Conduct That is Harmful to the Company (or any Affiliate or Subsidiary) To the extent permitted by law, you also will forfeit any outstanding NSOs and must return to the Company all common shares and other amounts you have received through the Plan if, without our consent, you do any of the following within 180 days before and 730 days after terminating employment (as defined in the Plan) with the Company or any Affiliate or Subsidiary: [a] You serve (or agree to serve) as an officer, director, consultant or employee of any proprietorship, partnership, corporation or other entity or become the owner of a business or a member of a partnership that competes with any portion of the Company’s (or any Affiliate’s or     GERMAN FORM Subsidiary’s) business with which you have been involved any time within five years before termination of employment or render any service (including, without limitation, advertising or business consulting) to entities that compete with any portion of the Company’s (or any Affiliate’s or Subsidiary’s) business with which you have been involved any time within five years before termination of employment; [b] You refuse or fail to consult with, supply information to or otherwise cooperate with the Company or any Affiliate or Subsidiary after having been requested to do so; [c] You deliberately engage in any action that the Company concludes has caused substantial harm to the interests of the Company or any Affiliate or Subsidiary; [d] On your own behalf or on behalf of any other person, partnership, association, corporation or other entity, you solicit or in any manner attempt to influence or induce any employee of the Company or any Affiliate or Subsidiary to leave the Company’s or any Affiliate’s or Subsidiary’s employment or use or disclose to any person, partnership, association, corporation or other entity any information obtained while an employee of the Company or any Affiliate or Subsidiary concerning the names and addresses of the Company’s or any Affiliate’s or Subsidiary’s employees; [e] You disclose confidential and proprietary information relating to the Company’s or any Affiliate’s or Subsidiary’s business affairs (“Trade Secrets”), including technical information, product information and formulae, processes, business and marketing plans, strategies, customer information and other information concerning the Company’s or any Affiliate’s or Subsidiary’s products, promotions, development, financing, expansion plans, business policies and practices, salaries and benefits and other forms of information considered by the Company or any Affiliate or Subsidiary to be proprietary and confidential and in the nature of Trade Secrets; [f] You fail to return all property (other than personal property), including keys, notes, memoranda, writings, lists, files, reports, customer lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data, formulae or any other tangible property or document and any and all copies, duplicates or reproductions that you have produced or received or have otherwise been submitted to you in the course of your employment with the Company or any Affiliate or Subsidiary; or [g] You engaged in conduct that the Committee (as defined in the Plan) reasonably concludes would have given rise to a termination for “cause” (as defined in the Plan) had it been discovered before you terminated your employment. Your NSOs May Vest Earlier Than Described Above. Normally, your NSOs will vest only in the circumstances described above. However, if there is a “Change in Control” (as defined in the Plan), your NSOs may vest earlier. You should read the Plan and the Prospectus carefully to ensure that you understand how this may happen. Amendment/Termination. We may amend or terminate the Plan at any time. Rights Before Your NSOs Are Exercised: You may not vote, or receive any dividends associated with, the common shares underlying your NSOs. Beneficiary Designation: You may name a beneficiary or beneficiaries to receive or to exercise any vested NSOs that are unexercised when you die. This may be done only on the attached Beneficiary     GERMAN FORM Designation Form and by following the rules described in that Form. The Beneficiary Designation Form need not be completed now and is not required as a condition of receiving your Award. If you die without completing a Beneficiary Designation Form or if you do not complete that Form correctly, your beneficiary will be your surviving spouse or, if you do not have a surviving spouse, your estate. Transferring Your NSOs: Normally your NSOs may not be transferred to another person. However, you may complete a Beneficiary Designation Form to name the person who may exercise your NSOs if you die before their Expiration Date. Also, the Committee may allow you to place your NSOs into a trust established for your benefit or for the benefit of your family. Contact [Third Party Administrator] at [TPA Telephone Number] or at the address given below if you are interested in doing this. Governing Law: This Award Agreement will be construed in accordance with and governed by the laws of the United States of America and of the State of Ohio (other than laws governing conflicts of laws). Other Agreements: Also, your NSOs will be subject to the terms of any other written agreements between you and the Company or any Affiliate or Subsidiary to the extent that those other agreements do not directly conflict with the terms of the Plan or this Award Agreement. Adjustments to NSOs: Your NSOs will be adjusted, if appropriate, to reflect any change to the Company’s capital structure (e.g., the number of your NSOs and the Exercise Price will be adjusted to reflect a stock split). No Right to Employment: Your award of NSOs is a voluntary, discretionary bonus being made on a one-time basis and it does not constitute a commitment to make any future awards. This award of NSOs and any payments made hereunder will not be considered salary or other compensation for purposes of any severance pay or similar allowance, except as otherwise required by law. Nothing in this Award Agreement will give you any right to continue employment with the Company or any Subsidiary or Affiliate, as the case may be, or interfere in any way with the right of the Company or a Subsidiary or an Affiliate to terminate your employment. Data Privacy: Information about you and your participation in the Plan, including, but not limited to, your name, home address and telephone number, date of birth, social insurance number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all NSOs or other entitlement to shares of stock awarded, cancelled, exercised, vested, unvested or outstanding in your favor, may be collected, recorded, held, used and disclosed for any purpose related to the administration and management of the Plan and in order to satisfy legal and regulatory requirements. You understand that the Company will keep your personal data in accordance with the rules set forth by Law No. 78-17, dated January 6, 1978, related to “software, files and liberties” (the “Law”). The Company will also take reasonable measures in order to protect your personal data and to observe the requirements set forth in the Commission Nationale de l’Informatique et des Libertés. Pursuant to the Law, you have the right to access and correct your personal data. You also understand that the Company and its Subsidiaries or Affiliates may transfer such information to any third party administrators, regardless of whether such persons are located within your country of residence, the European Economic Area or in countries outside of the European Economic Area, including the United States of America, where the rules protecting such data are less stringent than those applicable within the European Economic Area. You consent to the processing of information relating to you and your participation in the Plan in any one or more of the ways referred to above. Other Rules: Your NSOs also are subject to more rules described in the Plan and in the Plan’s Prospectus, as supplemented. You should read both of these documents carefully to ensure you fully understand all the terms and conditions of the grant of NSOs made to you under this Award Agreement. You may contact [Third Party Administrator] at [TPA Telephone Number] or at the address given below if you have any questions about your Award or this Award Agreement.     GERMAN FORM Your Acknowledgment of Award Conditions Note: You must sign and return a copy of this Award Agreement to [Third Party Administrator] at the address given below no later than [___Days Post Grant Date]. By signing below, I acknowledge and agree that:   •   A copy of the Plan has been made available to me;     •   I have received a copy of the Plan’s Prospectus, as supplemented;     •   I understand and accept the conditions placed on my NSOs and understand what I must do to earn and exercise my NSOs. I also have had the opportunity to seek advice from independent counsel regarding the terms and conditions of my NSOs;     •   I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my NSOs or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the U.S. Internal Revenue Code, even if those changes affect the terms of my NSOs and reduce their value or potential value; and     •   If I do not return a signed copy of this Award Agreement to the address shown below on or before [___Days Post Grant Date], my NSOs will be forfeited and I will not be entitled to receive anything on account of this Award.                   [Grantee’s Name]       THE SCOTTS MIRACLE-GRO COMPANY                   By:           By:                                         Date signed:           Name:                                                     Title:                                                     Date signed:                       A signed copy of this Award Agreement must be sent to the following address no later than [___Days Post Grant Date]: [Contact’s Address] After it is received, The Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan Committee will acknowledge receipt of your signed Award Agreement.     GERMAN FORM NONQUALIFIED STOCK OPTION EXERCISE NOTICE AFFECTING NONQUALIFIED STOCK OPTIONS GRANTED TO [GRANTEE’S NAME] ON [GRANT DATE] Additional copies of this Nonqualified Stock Option Exercise Notice (and any further information you may need about this Exercise Notice or exercising your NSOs) are available from [Third Party Administrator] at the address given below. By completing this Exercise Notice and returning it to [Third Party Administrator] at the address given below, I elect to exercise the NSOs described below: NOTE: You must complete a separate Nonqualified Stock Option Exercise Notice each time you exercise NSOs granted under each Award Agreement (e.g., if you are exercising 200 NSOs granted January 1, 2007 and 100 NSOs granted January 1, 2008 under a separate award agreement, you must complete two Nonqualified Stock Option Exercise Notices, one for each set of NSOs being exercised). AFFECTED NSOS: This exercise relates to the following NSOs (fill in the blanks): GRANT DATE: [GRANT DATE] NUMBER OF NSOS BEING EXERCISED WITH THIS EXERCISE NOTICE:                                                              EXERCISE PRICE: The Exercise Price due is US $                                                             NOTE: This amount must be the product of US $[Price] multiplied by the number of NSOs being exercised. PAYMENT OF EXERCISE PRICE: I have decided to pay the Exercise Price and any related taxes by (check one): NOTE: These methods are described in the Award Agreement.   ___   Cashless Exercise and Sell.     ___   Combination Exercise.     ___   Exercise and Hold. Note:   •   If you select the Exercise and Hold method of exercise, you must also follow the procedures described in the Award Agreement to pay the Exercise Price and the taxes related to this exercise. You should contact [Third Party Administrator] at the address given below to find out the amount of the taxes due.     GERMAN FORM   •   If you select either the Cashless Exercise and Sell or the Combination Exercise methods of paying the Exercise Price, you should contact [Third Party Administrator] at the address given below to be sure you understand how your choice of payment will affect the number of common shares of the Company you will receive.     GERMAN FORM YOUR ACKNOWLEDGEMENT OF EFFECT OF EXERCISE   •   I fully understand the effect (including the investment effect) of exercising my NSOs and buying common shares of the Company and understand that there is no guarantee that the value of these common shares will appreciate or will not depreciate;     •   This Exercise Notice will have no effect if it is not returned to [Third Party Administrator] at the address given below before the Expiration Date specified in the Award Agreement under which these NSOs were granted; and     •   The common shares of the Company I am buying by completing and returning this Exercise Notice will be issued to me as soon as administratively practicable. [Grantee’s Name]                                                                                  (signature) Date signed:                                                              A signed copy of this Nonqualified Stock Option Exercise Notice must be sent to the following address no later than the Expiration Date: [Contact’s Address]     GERMAN FORM ACKNOWLEDGEMENT OF RECEIPT A signed copy of this Nonqualified Stock Option Exercise Notice was received on:                                                             . [Grantee’s Name]:   ___   Has effectively exercised the NSOs described in this Notice; or     ___   Has not effectively exercised the NSOs described in this Notice because                                                                                    describe deficiency The Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan Committee           By:                             Date:                   Note: Keep a copy of this Exercise Notice as part of the Plan’s permanent records.     GERMAN FORM Date]. accept the conditions placed on my Award and understand what I must do to earn my Award. I also have had the opportunity to seek advice from independent counsel regarding the terms and conditions of my Award;     •   I will consent (on my own behalf and on behalf of my beneficiaries and without any further consideration) to any necessary change to my Award or this Award Agreement to comply with any law and to avoid paying penalties under Section 409A of the U.S. Internal Revenue Code, even if those changes affect the terms of my Award and reduce their value or potential value; and     •   If I do not return a signed copy of this Award Agreement to the address shown below on or before [___Days Post Grant Date], my Award will be forfeited and I will not be entitled to receive anything on account of this Award.                   By:           By:                                         Date signed:           Name:                                                     Title:                                                     Date signed:                       [Contact’s Address]     GERMAN FORM Committee’s Acknowledgment of Receipt A signed copy of this Award Agreement was received on                                         . By:                                               [Grantee’s Name] ___Has complied with the conditions imposed on the grant and the Award Agreement remains in effect; or ___Has not complied with the conditions imposed on the grant and the [Name of Award(s)] are forfeited because                                                             . describe deficiency           By:                             Date:                   Note: Send a copy of this completed Award Agreement to [Grantee’s Name] and keep a copy as part of the Plan’s permanent records.     GERMAN FORM BENEFICIARY DESIGNATION FORM RELATING TO [FORM OF AWARD] AWARD GRANTED TO 1.00 Instructions for Completing This Beneficiary Designation Form You may use this Beneficiary Designation Form to [1] name the person you want to receive any amount due under The Scotts Miracle-Gro Company 2006 Long-Term Incentive Plan after your death or [2] change the person who will receive these benefits. There are several things you should know before you complete this Beneficiary Designation Form. First, if you do not elect a beneficiary, any amount due to you under the Plan when you die will be paid to your surviving spouse or, if you have no surviving spouse, to your estate. Second, your election will not be effective (and will not be implemented) unless you complete all applicable portions of this Beneficiary Designation Form and return it to [Third Party Administrator] at the address given below. Third, all elections will remain in effect until they are changed (or until all death benefits are paid). Fourth, if you designate your spouse as your beneficiary but are subsequently divorced from that person (or your marriage is annulled), your beneficiary designation will be revoked automatically. Fifth, if you have any questions about this Beneficiary Designation Form or if you need additional copies of this Form, please contact [Third Party Administrator] at [TPA Telephone Number] or at the address or number given below. 1.00 Designation of Beneficiary 1.01 Primary Beneficiary: I designate the following person(s) as my Primary Beneficiary or Beneficiaries to receive any amount due after my death under the terms of the Award Agreement described at the top of this Beneficiary Designation Form. This benefit will be paid, in the proportion specified, to:                               % to                                           (Name)   (Relationship)                               Address:                                                             % to                                                           Address:                                   GERMAN FORM                               % to                                                           Address:                                                             % to                                                           Address:                               1.02 Contingent Beneficiary      If one or more of my Primary Beneficiaries die before I die, I direct that any amount due after my death under the terms of the Award described at the top of this Beneficiary Designation Form: ___Be paid to my other named Primary Beneficiaries in proportion to the allocation given above (ignoring the interest allocated to the deceased Primary Beneficiary); or ___Be distributed among the following Contingent Beneficiaries:                               % to                                                           Address:                                                             % to                                                           Address:                                                             % to                                                           Address:                                                             % to                                                           Address:                               Elections made on this Beneficiary Designation Form will be effective only after this Form is received by [Third Party Administrator] and only if it is fully and properly completed and signed. [Grantee’s Name]       Date of Birth:                 Address:                        Sign and return this Beneficiary Designation Form to [Third Party Administrator] at the address given below.                                       Date       Signature         GERMAN FORM Return this signed Beneficiary Designation Form to [Third Party Administrator] at the following address: [Contact’s Address] Received on:                                          By:                                                               

Exhibit 10.1 FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT This FIRST AMENDMENT to Amended and Restated Loan and Security Agreement (this “Amendment”) is entered into this 16th day of November, 2012, by and between SILICON VALLEY BANK (“Bank”) and RAMTRON INTERNATIONAL CORPORATION, a Delaware corporation (“Borrower”), whose address is 1850 Ramtron Drive, Colorado Springs, Colorado 80921. RECITALS A. Bank and Borrower have entered into that certain Amended and Restated Loan and Security Agreement dated as of February 29, 2012, as amended by that certain Default Waiver and Consent to Pursuant to Loan and Security Agreement dated as of October 31, 2012, (as the same may from time to time be amended, modified, supplemented or restated, the “Loan Agreement”). Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement. B. Borrower has requested that Bank (i) modify the interest rate applicable to the credit facilities under the Loan Agreement, (ii) waive certain prepayment penalties set forth in the Loan Agreement, (iii) delete any collateral monitoring fee, (iv) delete weekly collateral reporting requirements, (v) suspend the testing of certain covenants as long as the Cypress Guaranty is in place, and (vi) make certain other changes, so long as Borrower complies with the terms, covenants and conditions set forth in this Amendment. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows: 1. Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement. 2. Amendments to Loan Agreement. 2.1 Section 2.1.3(b) (Term Loan). Section 2.1.3(b) of the Loan Agreement is hereby amended and replaced with the following: Repayment. Borrower shall make a pre-payment on the Term Loan on or before April 1, 2012, in an amount of up to $1,250,000. Thereafter, Borrower shall repay the outstanding balance of the Term Loan Amount in (i) twenty-seven (27) equal installments of principal, plus (ii) installments of accrued and unpaid interest on Interest Payment Dates (the “Term Loan Payment”). Beginning on April 1, 2012, each Term Loan Payment shall be payable on the first day of each month (except for interest otherwise payment on a difference Interest Payment Date). Borrower’s final Term Loan Payment, due on the Term Loan Maturity Date, shall include all outstanding principal and accrued and unpaid interest under the Term Loan. Borrower’s final Term Loan Payment, due on the Term Loan Maturity Date, shall include all outstanding principal and accrued and unpaid interest under the Term Loan. Once repaid, the Term Loan may not be reborrowed. 2.2 Section 2.1.3(c) (Term Loan). Section 2.1.3(c) of the Loan Agreement is Prepayment. At Borrower’s option, so long as an Event of Default has not occurred and is not continuing, Borrower shall have the option to prepay all, but not less than all, of the Term Loan Amount advanced by Bank under this Agreement, provided Borrower pays, on the date of the prepayment (a) all accrued and unpaid interest with respect to the Term Loan through the date the prepayment is made; (b) all unpaid principal with respect to the Term Loan; and (c) all other sums, if any, that shall have become due and payable hereunder with respect to this Agreement. 2.3 Section 2.2 (Overadvances). Section 2.2 of the Loan Agreement is hereby amended and restated to read as follows: Overadvances. If, at any time, the sum of (a) the outstanding principal amount of any Advances (such sum being an “Overadvance”) exceeds the Revolving Line, Borrower shall immediately pay to Bank in cash such Overadvance. Without limiting Borrower’s obligation to repay Bank any amount of the Overadvance, Borrower agrees to pay Bank interest on the outstanding amount of any Overadvance, on demand, at the Default Rate. 2.4 Section 2.3(a) (Interest Rate). Section 2.3(a) of the Loan Agreement is hereby amended and restated to read as follows: (a) Interest Rate. (i) Advances. Subject to Section 2.3(b), the principal amount outstanding under the Revolving Line shall accrue interest at a floating per annum rate equal to the Base Rate or, if chosen by Borrower pursuant to a Conversion/Continuation Notice, the Adjusted Eurodollar Rate plus, in each case, the Applicable Margin, which interest shall be payable on each Interest Payment Date, in arrears, in accordance with Section 2.3(f) below. (ii) Term Loan. Subject to Section 2.3(b), the principal amount outstanding under the Term Loan shall accrue interest at a floating per annum rate equal to which interest shall be payable on each Interest Payment Date, in accordance with Section 2.1.3(b). 2.5 Section 2.3(f) (Interest Rate). The first sentence of Section 2.3(f) of the Loan Agreement is hereby amended and restated to read as follows: Interest on the Revolving Line is payable on each Interest Payment Date.   2 2.6 Section 2.4 (Fees). Section 2.4(c) of the Loan Agreement entitled “Termination Fee” and Section 2.4(d) entitled “Collateral Monitoring Fee” are each deleted and replaced with the following: [Intentionally Omitted] 2.7 Section 3.5 (Continuation/Conversion Elections). A new Section 3.5 is hereby added to the Loan Agreement as follows: Conversion and Continuation Elections. So long as (i) no Event of Default exists; (ii) Borrower shall not have sent any notice of termination of this Agreement; and (iii) Borrower shall have complied with such customary procedures as Bank has established from time to time for Borrower’s requests for Eurodollar Rate Loans, Borrower may, upon irrevocable written notice to Bank: (1) elect to convert on any Business Day, Base Rate Loans into Eurodollar Rate Loans in a minimum amount of $1,000,000 and in additional increments of $500,000 in excess of such amount; (2) elect to continue on any Interest Payment Date any Eurodollar Rate Loans maturing on such Interest Payment Date in a minimum amount of $1,000,000 and in additional increments of $500,000 in excess of such amount; or (3) elect to convert on any Interest Payment Date any Eurodollar Rate Loans maturing on such Interest Payment Date into Base Rate Loans. Borrower shall deliver a Conversion/Continuation Notice by electronic mail to be received by Bank prior to 12:00 p.m. Pacific time (i) at least three (3) Business Days in advance of the Conversion/Continuation Date, if any loans are to be converted into or continued as Eurodollar Rate Loans; and (ii) on the Conversion/Continuation Date, if any loans are to be converted into Base Rate Loans, in each case specifying the: (1) proposed Conversion/Continuation Date; (2) aggregate amount of the loans to be converted or continued; (3) nature of the proposed conversion or continuation; and (4) if the resulting loan is to be a Eurodollar Rate Loan, the duration of the requested Interest Period. If upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, Borrower shall have timely failed to select a new Interest Period to be applicable to such Eurodollar Rate Loan or request to convert a Eurodollar Rate Loan into a Base Rate Loan, Borrower shall be deemed to have elected for any such loan, to convert such Eurodollar Rate Loan into a Base Rate Loan. Any Eurodollar Rate Loan shall, at Bank’s option, convert into a Base Rate Loan in the event that (i) an Event of Default exists, or (ii) the aggregate principal amount of the Base Rate Loans which have been previously converted to Eurodollar Rate Loans, or the   3 aggregate principal amount of existing Eurodollar Rate Loans continued, as the case may be, at the beginning of an Interest Period shall at any time during such Interest Period exceeds the Revolving Line. Borrower agrees to pay Bank, upon demand by Bank (or Bank may, at its option, debit the Designated Deposit Account or any other account Borrower maintains with Bank) any amounts required to compensate Bank for any loss (including loss of anticipated profits), cost, or expense incurred by Bank, as a result of the conversion of Eurodollar Rate Loans to Base Rate Loans pursuant to this Section. Notwithstanding anything to the contrary contained herein, Bank shall not be required to purchase dollar deposits in the London interbank market or other applicable Eurodollar market to fund any Eurodollar Rate Loans, but the provisions hereof shall be deemed to apply as if Bank had purchased such deposits to fund the Eurodollar Rate Loans. 2.8 Section 3.6 (Special Provisions Governing Eurodollar Rate Loans). A new Section 3.6 is hereby added to the Loan Agreement as follows: Special Provisions Governing Eurodollar Rate Loans. Notwithstanding any other provision of this Agreement to the contrary, the following provisions shall govern with respect to Eurodollar Rate Loans as to the matters covered: (a) Determination of Applicable Interest Rate. As soon as practicable on each Interest Rate Determination Date, Bank shall determine (which determination shall, absent manifest error in calculation, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower. (b) Inability to Determine Applicable Interest Rate. In the event that Bank shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loan, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Eurodollar Rate Loan on the basis provided for in the definition of Adjusted Eurodollar Rate, Bank shall on such date give notice (by facsimile or by telephone confirmed in writing) to Borrower of such determination, whereupon (i) no loans may be made as, or converted to, Eurodollar Rate Loans until such time as Bank notifies Borrower that the circumstances giving rise to such notice no longer exist, and (ii) any Conversion/Continuation Notice given by Borrower with respect to Eurodollar Rate Loans in respect of which such determination was made shall be deemed to be rescinded by Borrower. (c) Compensation for Breakage or Non-Commencement of Interest Periods. If (i) for any reason, other than a default by Bank or any failure of Bank to fund Eurodollar Rate Loans due to impracticability or illegality under Sections 3.7(c) and 3.7(d) of this Agreement, a borrowing or a conversion to or continuation of any Eurodollar Rate Loans does not occur on a date specified in a Conversion/Continuation Notice, as the case may be, or (ii) any complete or partial principal payment or reduction of a Eurodollar Rate Loan, or any conversion of any Eurodollar Rate Loan, occurs on a date prior to the last day of an Interest   4 Period applicable to that Eurodollar Rate Loan, including due to voluntary or mandatory prepayment or acceleration, then, in each case, Borrower shall compensate Bank, upon written request by Bank, for all losses and expenses incurred by Bank in an amount equal to the excess, if any, of: (A) the amount of interest that would have accrued on the amount (1) not borrowed, converted or continued as provided in clause (i) above, or (2) paid, reduced or converted as provided in clause (ii) above, for the period from (y) the date of such failure to borrow, convert or continue as provided in clause (i) above, or the date of such payment, reduction or conversion as provided in clause (ii) above, as the case may be, to (z) in the case of a failure to borrow, convert or continue as provided in clause (i) above, the last day of the Interest Period that would have commenced on the date of such borrowing, conversion or continuing but for such failure, and in the case of a payment, reduction or conversion prior to the last day of an Interest Period applicable to a Eurodollar Rate Loan as provided in clause (ii) above, the last day of such Interest Period, in each case at the applicable rate of interest or other return for such Eurodollar Rate Loans provided for herein, over (B) the interest which would have accrued to Bank on the applicable amount provided in clause (A) above through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to the definition of Adjusted Eurodollar Rate on the date of such failure to borrow, convert or continue as provided in clause (i) above, or the date of such payment, reduction or conversion as provided in clause (ii) above, as the case may be, for a period equal to the remaining period of such applicable Interest Period provided in clause (A) above. Bank’s request shall set forth the manner and method of computing such compensation and such determination as to such compensation shall be conclusive absent manifest error. (d) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all amounts payable to Bank under this Section 3.6 and under Section 3.7 shall be made as though Bank had actually funded each relevant Eurodollar Rate Loan through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period; provided, however, that Bank may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 3.6 and under Section 3.7. (e) Eurodollar Rate Loans After Default. After the occurrence and during the continuance of an Event of Default, (i) Borrower may not elect to have a loan be made or continued as, or converted to, a Eurodollar Rate Loan after the expiration of any Interest Period then in effect for such loan and (ii) subject to the provisions of Section 3.6(c), any Conversion/Continuation Notice given by Borrower with respect to a requested conversion/continuation that has not yet occurred shall, at Bank’s option, be deemed to be rescinded by Borrower and be deemed a request to convert or continue loans referred to therein as Base Rate Loans.   5 2.9 Section 3.7 (Additional Requirements Governing Eurodollar Rate Loans). A new Section 3.7 is hereby added to the Loan Agreement as follows: Additional Requirements/Provisions Regarding Eurodollar Rate Loans. (a) Borrower shall pay Bank, upon demand by Bank, from time to time such amounts as Bank may determine to be necessary to compensate it for any costs incurred by Bank that Bank determines are attributable to its making or maintaining of any amount receivable by Bank hereunder in respect of any Eurodollar Rate Loans relating thereto (such increases in costs and reductions in amounts receivable being herein called “Additional Costs”), in each case resulting from any Regulatory Change which: (i) changes the basis of taxation of any amounts payable to Bank under this Agreement in respect of any Eurodollar Rate Loans (other than changes which affect taxes measured by or imposed on the overall net income of Bank by the jurisdiction in which Bank has its principal office); (ii) imposes or modifies any reserve, special deposit or similar requirements relating to any extensions of credit or other assets of, or any deposits with, or other liabilities of Bank (including any Eurodollar Rate Loans or any deposits referred to in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition affecting this Agreement (or any of such extensions of credit or liabilities). Bank will notify Borrower of any event occurring after the Effective Date which will entitle Bank to compensation pursuant to this Section 3.7(a) as promptly as practicable after it obtains knowledge thereof and determines to request such compensation. Bank will furnish Borrower with a statement setting forth the basis and amount of each request by Bank for compensation under this Section 3.7(a). Determinations and allocations by Bank for purposes of this Section 3.7(a) of the effect of any Regulatory Change on its costs of maintaining its obligations to make Eurodollar Rate Loans, of making or maintaining Eurodollar Rate Loans, or on amounts receivable by it in respect of Eurodollar Rate Loans, and of the additional amounts required to compensate Bank in respect of any Additional Costs, shall be conclusive absent manifest error. (b) If Bank shall determine that the adoption or implementation of any applicable law, rule, regulation, or treaty regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank, or comparable agency charged with the interpretation or administration thereof, or compliance by Bank (or its applicable lending office) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank, or comparable agency, has or would have the effect of reducing the rate of return on capital of Bank or any person or entity controlling Bank (a “Parent”) as a consequence of its obligations hereunder to a level below that which Bank (or its Parent) could have achieved but for such adoption, change, or compliance (taking into consideration policies with respect to capital adequacy) by an amount deemed by Bank to be material, then from time to time, within five (5)   6 days after demand by Bank, Borrower shall pay to Bank such additional amount or amounts as will compensate Bank for such reduction. A statement of Bank claiming compensation under this Section 3.7(b) and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive absent manifest error. Notwithstanding anything to the contrary in this Section 3.7, Borrower shall not be required to compensate Bank pursuant to this Section 3.7(b) for any amounts incurred more than nine (9) months prior to the date that Bank notifies Borrower of Bank’s intention to claim compensation therefor; provided that if the circumstances giving rise to such claim have a retroactive effect, then such nine-month period shall be extended to include the period of such retroactive effect. The obligations of the Borrower arising pursuant to this Section 3.7(b) shall survive the Revolving Line Maturity Date, the termination of this Agreement and the repayment of all Obligations. (c) If, at any time, Bank, in its sole and absolute discretion, determines that (i) the amount of Eurodollar Rate Advances for periods equal to the corresponding Interest Periods are not available to Bank in the offshore currency interbank markets, or (ii) the Adjusted Eurodollar Rate does not accurately reflect the cost to Bank of lending the Eurodollar Rate Loans, then Bank shall promptly give notice thereof to Borrower. Upon the giving of such notice, Bank’s obligation to make the Eurodollar Rate Loans shall terminate; provided, however, Eurodollar Rate Loans shall not terminate if Bank and Borrower agree in writing to a different interest rate applicable to Eurodollar Rate Loans. (d) If it shall become unlawful for Bank to continue to fund or maintain any Eurodollar Rate Loans, or to perform its obligations hereunder, upon demand by Bank, Borrower shall prepay the Eurodollar Rate Loans in full with accrued interest thereon and all other amounts payable by Borrower hereunder (including, without limitation, any amount payable in connection with such prepayment pursuant to Section 3.6(c)(ii)). Notwithstanding the foregoing, to the extent a determination by Bank as described above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Conversion/Continuation Notice, Borrower shall have the option, subject to the provisions of Section 3.6(c)(ii), to (i) rescind such Conversion/Continuation Notice by giving notice (by facsimile or by telephone confirmed in writing) to Bank of such rescission on the date on which Bank gives notice of its determination as described above, or (ii) modify such Conversion/Continuation Notice to obtain a Base Rate Loan or to have outstanding loans converted into or continued as Base Rate Loans by giving notice (by facsimile or by telephone confirmed in writing) to Bank of such modification on the date on which Bank gives notice of its determination as described above. 2.10 Section 6.2(a) (Transaction Report). Section 6.2(a) of the Loan Agreement [Intentionally Omitted] 2.11 Section 6.4(b) (Accounts Receivable). Section 6.4(b) of the Loan Agreement is hereby amended and restated to read as follows: Disputes. Borrower shall promptly notify Bank of all disputes or claims relating to Accounts. Borrower may forgive (completely or partially), compromise, or settle any Account for less than payment in full, or agree to do any of the foregoing so long as   7 (i) Borrower does so in good faith, in a commercially reasonable manner, in the ordinary course of business, in arm’s-length transactions, and reports the same to Bank in the regular reports provided to Bank; (ii) no Default or Event of Default has occurred and is continuing; and (iii) after taking into account all such discounts, settlements and forgiveness, the total outstanding Advances will not exceed the Revolving Line. 2.12 Section 6.9 (Financial Covenants). The introductory sentence to Section 6.9 of the Loan Agreement is hereby amended and restated to read as follows: Borrower shall maintain at all times, to be tested as of the last day of each month, unless otherwise noted, on a consolidated basis with respect to Borrower and its Subsidiaries (provided, however, that no testing of such financing covenants will be done or required as long as the Cypress Guaranty is outstanding and in full force and effect): 2.13 Section 8.6 (Other Agreements). Section 8.6 of the Loan Agreement is hereby amended and replaced with the following: Other Agreements. There is, (a) under any agreement to which Borrower or any Guarantor is a party with a third party or parties, (i) any default resulting in a right by such third party or parties, whether or not exercised, to accelerate the maturity of any Indebtedness in an amount individually or in the aggregate in excess of Fifty Thousand Dollars ($50,000); or (ii) any default by Borrower or Guarantor, the result of which could have a material adverse effect on Borrower’s or any Guarantor’s business; provided that this subsection (a) shall not apply to Cypress or (b) any default or event of default under the Cypress Credit Agreement; 2.14 Section 8.10 (Guaranty). Section 8.10 of the Loan Agreement is hereby Guaranty. (a) Any guaranty of any Obligations terminates or ceases for any reason to be in full force and effect; (b) any Guarantor does not perform any obligation or covenant under any guaranty of the Obligations; (c) any circumstance described in Sections 8.3, 8.4, 8.5, 8.7, or 8.8 occurs with respect to any Guarantor (other than Cypress, to which this subsection (c) shall not apply), or (d) the liquidation, winding up, or termination of existence of any Guarantor; or (e) (i) a material impairment in the perfection or priority of Bank’s Lien in the collateral provided by Guarantor or in the value of such collateral or (ii) a material adverse change in the general affairs, management, results of operation, condition (financial or otherwise) or the prospect of repayment of the Obligations occurs with respect to any Guarantor (other than Cypress, to which this subsection (e) shall not apply); or 2.15 Section 12.1 (Termination Prior to Revolving Line Maturity Date). Section 12.1 of the Loan Agreement is hereby deleted and replaced with the following: [Intentionally Omitted]   8 2.16 Section 13 (Definitions). The following terms and their definitions set forth in Section 13.1 of the Loan Agreement are hereby deleted: “Borrowing Base” “Transaction Report” 2.17 Section 13 (Definitions). The following terms and their definitions set forth in Section 13.1 of the Loan Agreement are hereby amended and restated to read as follows (or added to the Loan Agreement if a new definition): “Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (and rounding upward to the next whole multiple of 1/100 of 1%) (i) (a) the rate appearing on Reuters BBA Libor Rates Page 3750 (or on any successor or substitute page thereto if the British Bankers’ Association is no longer making a Libor rate available) providing rate quotations comparable to those currently provided on such page of such page, as determined by Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market at commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period, or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period by (ii) an amount equal to (a) one minus (b) the Applicable Reserve Requirement. “Applicable Margin” means (a) when applied to the Base Rate, 1.25% and (b) when applied to the Adjusted Eurodollar Rate, 2.25%. “Applicable Reserve Requirement” means a fraction (expressed as a decimal), the one minus the aggregate of the maximum reserve percentage (including any established by the Board of Governors to which Bank is subject with respect to the Adjusted Eurodollar Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board of Governors). Such reserve percentage shall include those imposed pursuant to such Regulation D. Loans based on the Adjusted Eurodollar Rate shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Applicable Reserve Requirement shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.   9 “Availability Amount” is (a) the Revolving Line minus (b) the outstanding principal balance of any Advances and EXIM Loans. “Base Rate” means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in effect on such day, or (ii) the Federal Funds Effective Rate in effect on such day plus  1/2 of 1%. Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. “Base Rate Loan” means a loan under this Agreement accruing interest based on the Base Rate. “Business Day” is any day that is not a Saturday, Sunday or other day on which banking institutions in the State of California are authorized or required by law or other governmental action to close, except that if any determination of a “Business Day” shall relate to a Eurodollar Rate Loan, the term “Business Day” shall also mean a day on which dealings are carried on in the London interbank market. “Conversion/Continuation Date” means the effective date of a funding, continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice. “Conversion/Continuation Notice” means a conversion/continuation notice substantially in the form agreed to by Bank and Borrower, which shall be substantially the same as the similar form in the Cypress Credit Agreement if not otherwise agreed upon. “Cypress” means Cypress Semiconductor Corporation, a Delaware corporation. “Cypress Credit Agreement” means the Credit and Guaranty Agreement dated as of June 26, 2012 by and among Cypress as borrower, Morgan Stanley Senior Funding, Inc., JP Morgan Chase Bank, N.A., Silicon Valley Bank and certain other parties as lenders, and certain other parties as guarantors, as such document is amended, modified ore restated from time to time. “Cypress Guaranty” means the Unconditional Guaranty entered into by Cypress in favor of Bank guarantying all of the Obligations. “Eurodollar Rate Loan” means a loan under this Agreement accruing interest based on the Adjusted Eurodollar Rate. “Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such   10 day; provided, (i) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Bank on such day on such transactions as determined by Bank. “Interest Payment Date” means with respect to (i) any Base Rate Loan, the last day of each month and on the Revolving Line Maturity Date and Term Loan Maturity Date; and (ii) any Eurodollar Rate Loan, the last day of each Interest Period applicable to such loan; provided, in the case of each Interest Period of longer than three months “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period. “Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of one, two, three or six months, as selected by Borrower in the applicable Conversion/Continuation Notice, (i) initially, commencing on the Conversion/Continuation Date thereof; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clauses (c) and (d), of this definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect to the Term Loan shall extend beyond the Term Loan Maturity Date; and (d) no Interest Period with respect to any portion of the Revolving Line shall extend beyond the Revolving Line Maturity Date. “Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period. 3. Limitation of Amendments. 3.1 The amendments set forth in Section 2, above, are effective for the purposes set forth herein and shall be limited precisely as written and shall not be deemed to (a) be a consent to any amendment, waiver or modification of any other term or condition of any Loan Document, or (b) otherwise prejudice any right or remedy which Bank may now have or may have in the future under or in connection with any Loan Document. 3.2 This Amendment shall be construed in connection with and as part of the Loan Documents and all terms, conditions, representations, warranties, covenants and agreements set forth in the Loan Documents, except as herein amended, are hereby ratified and confirmed and shall remain in full force and effect.   11 4. Representations and Warranties. To induce Bank to enter into this Amendment, Borrower hereby represents and warrants to Bank as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Event of Default other than the Existing Defaults has occurred and is continuing; 4.2 Borrower has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment; 4.3 The organizational documents of Borrower delivered to Bank on the Effective Date remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and effect; 4.4 The execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary action on the part of Borrower; 4.5 The execution and delivery by Borrower of this Amendment and the performance Amendment, do not and will not contravene (a) any law or regulation binding on or affecting Borrower, (b) any contractual restriction with a Person binding on Borrower, (c) any order, judgment or decree of any court or other governmental or public body or authority, or subdivision thereof, binding on Borrower, or (d) the organizational documents of Borrower; 4.6 The execution and delivery by Borrower of this Amendment and the performance Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, except as already has been obtained or made; and 4.7 This Amendment has been duly executed and delivered by Borrower and is the binding obligation of Borrower, enforceable against Borrower in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors’ rights. 5. Prior Agreement. Except as expressly provided for in this Amendment, the Loan Documents are hereby ratified and reaffirmed and shall remain in full force and effect. This Amendment is not a novation and the terms and conditions of this Amendment shall be in addition to and supplemental to all terms and conditions set forth in the Loan Documents. In the event of any conflict or inconsistency between this Amendment and the terms of such documents, the terms of this Amendment shall be controlling, but such document shall not otherwise be affected or the rights therein impaired.   12 6. Integration. This Amendment and the Loan Documents represent the entire agreement about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Amendment and the Loan Documents merge into this Amendment and the Loan Documents. 7. Counterparts. This Amendment may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument. 8. Effectiveness. This Amendment shall be deemed effective upon the due execution and delivery to Bank of this Amendment by each party hereto, due execution and delivery to Bank of the Cypress Guaranty and payment of all legal expenses of Bank related to this Amendment. 9. Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the State of California. Section 11 of the Loan Agreement applies to this Amendment as if set forth herein.   13   BANK         BORROWER Silicon Valley Bank         Ramtron International Corporation By:   /s/ Alexis Coyle         By:    /s/ Gery E. Richards Name:   Alexis Coyle         Name:    Gery E. Richards Title:   Director         Title:    CFO

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 OF THE SECURITIES EXCHANGE ACT OF 1934 For the month of January, 2013 Commission File Number 000-28996 ELBIT IMAGING LTD. (Translation of Registrant’s Name into English) 2 WEITZMAN STREET, TEL AVIV 64239, ISRAEL (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F x Form 40-F 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)(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): CONTENTS This Report on Form 6-K of Elbit consists of the following document, which is attached hereto and incorporated by reference herein: Press Release: ELBIT IMAGING ANNOUNCES AVAILABILITY OF INVESTOR RELATIONS PRESENTATION ON ITS WEBSITE. 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. Date: January 22, 2013 ELBIT IMAGING LTD. (Registrant) By: /s/ Shimon Yitzhaki ————— Shimon Yitzhaki Executive Chairman 2 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION Press Release: ELBIT IMAGING ANNOUNCES AVAILABILITY OF INVESTOR RELATIONS PRESENTATION ON ITS WEBSITE. 3

Title: My ex Question:So my me and my Ex broke up last week. She is currently in the ER because she carved part of her arm out. I feel super bad. Can I be charged or sued or get in any legal trouble? I’m 14, she is 15. I’m in CA Answer #1: No. It was her decision to harm herself. You are not responsible for her decision. If you need to talk to someone about this to explore more about how this is not your fault, please do.

AMENDMENT NO. 29 TO PARTICIPATION AGREEMENT AMONG AEGON/TRANSAMERICA SERIES FUND, INC., TRANSAMERICA LIFE INSURANCE COMPANY, TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY, PEOPLES BENEFIT LIFE INSURANCE COMPANY, TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY AND TRANSAMERICA LIFE INSURANCE AND ANNIDTY COMPANY Amendment No. 29 to the Participation Agreement among AEGON/Transamerica Series Fund, Inc., (the "Fund"), Transamerica Life Insurance Company ("Transamerica"), Transamerica Financial Life Insurance Company ("TFLIC"), Peoples Benefit Life Insurance Company ("Peoples"), Transamerica Occidental Life Insurance Company ("TOLIC"), and Transamerica Life Insurance and Annuity Company ("T ALIAC") dated July 1, 1992, as amended ("Participation Agreement"). WHEREAS, the Fund's Board of Directors approved resolutions for the following changes to go into effect April30, 2004: a name change of the following portfolios: Dreyfus Mid Cap to J.P. Morgan Mid Cap Value, Dreyfus Small Cap Value to Transamerica Small/Mid Cap Value, American Century Income & Growth to American Century Large Company Value and PBHG/NWQ Value Select to Mercury Large Cap Value; restructuring of the Janus Balanced portfolio to Transamerica Balanced; and the mergers of the following portfolios: Alger Aggressive Growth into Transamerica Equity, LKCM Strategic Total Return into Transamerica Value Balanced, GE U.S. Equity into Great Companies- Americassm, PBHG Mid Cap Growth into Transamerica Growth Opportunities, BlackRock Global Science & Technology Opportunities into Great Companies Technologysm,BlackRock Mid Cap Growth into Transamerica Equity, BlackRock Large Cap Value into Mercury Large Cap Value, Templeton Great Companies Global into Janus Global and then a name change of Janus Global to Templeton Great Companies Global; and NOW, THEREFORE, IT IS HEREBY AGREED that Schedule B to the Participation Agreement is hereby amended to reflect the various name changes to certain portfolios due to the mergers listed above. IN WITNESS WHEREOF, each of the parties has caused this Amendment to be executed in its name and on its behalf by its duly authorized representative as of May 1, 2004. TRANSAMERICA LIFE INSURANCE COMPANY AEGON/TRANSAMERICA SERIES FUND, INC. By its authorized officer By its authorized officer By: /s/Larry N. Norman By: /s/ John K. Carter Larry N. Norman John K. Carter Title: President Title: Vice President, Secretary and General Counsel TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY PEOPLES BENEFIT LIFE INSURANCE COMPANY By its authorized officer By its authorized officer By: /s/ Larry N. Norman By: /s/ Larry N. Norman Larry N. Norman Larry N. Norman Title: Vice President Title: Executive Vice President TRANSAMERICA OCCIDENTAL LIFE INSURANCE COMPANY TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY By its authorized officer By its authorized officer By: /s/ Priscilla I. Hechler By: /s/ Priscilla I. Hechler Priscilla I. Hechler Priscilla I. Hechler Title: Assistant Vice President and Assistant Secretary Title: Assistant Vice President and Assistant Secretary AMENDED SCHEDULE A Effective May 1, 2004 Account(s), Policy(ies) and Portfolio(s) Subject to the Participation Agreement Accounts: Separate Account VA B Separate Account VA BNY Mutual Fund Account Separate Account VA A Separate Account VA C Separate Account VA D Retirement Builder Variable Annuity Account Transamerica Financial Life Insurance Company Separate Account C Peoples Benefit Life Insurance Company Separate Account V Legacy Builder Variable Life Separate Account TFLIC Series Life Account TFLIC Series Annuity Account Transamerica Occidental Life Separate Account VUL-3 Separate Account VA E Separate Account VA F Transamerica Occidental Life Separate Account VUL-4 Transamerica Occidental Life Separate Account VUL-5 Transamerica Life Insurance and Annuity Company on behalf of its Separate Account V A-8 Separate Account VA J Transamerica Occidental Life Separate Account VUL-6 TA PPVUL 1 Separate Account K Separate Account H Separate Account G Separate Account VA-2LNY Separate Account V A-2L Separate Account VL A AES Private Placement VA Separate Account Separate Account VA L Separate Account VA P PFL Corporate Account One Separate Account VA R Separate Account VA S Separate Account Q Separate Account QNY Policies: Transamerica Landmark Variable Annuity Transamerica Landmark NY Variable Annuity Atlas Portfolio Builder Variable Annuity Transamerica EXTRA Variable Annuity Transamerica Access Variable Annuity Retirement Income Builder II Variable Annuity TFLIC & Peoples- Advisor's Edge Variable Annuity Peoples- Advisor's Edge Select Variable Annuity Legacy Builder Plus TFLIC Financial Freedom Builder Transamerica Elite Privilege Select Variable Annuity Estate Enhancer Variable Life TransSurvivor Life Variable Universal Life TransMark Optimum Choice Variable Annuity TransUltra® Variable Universal Life TFLIC Freedom Elite Builder TFLIC Premier Variable Annuity Immediate Income Builder II AMENDED SCHEDULE A (continued) Policies Premier Asset Builder Variable Annuity (continued) TransAccumulatorsm VUL TFLI C Freedom Wealth Protector Advantage V Retirement Income Builder Variable Annuity Retirement Income Builder- BAI Variable Annuity Dreyfus Advisor Advantage Variable Annuity Dreyfus Access Advantage Variable Annuity Dreyfus/Transamerica Triple Advantage® Variable Annuity (NY) Dreyfus/Transamerica Triple Advantage® Variable Annuity Transamerica Variable Life Advisor's Edge Select Private Placement Transamerica Preferred Advantage Variable Annuity Flexible Premium Variable Annuity- A Portfolio Select Variable Annuity Flexible Premium Variable Annuity- B Flexible Premium Variable Annuity- C Flexible Premium Variable Annuity- D Flexible Premium Variable Annuity- E Portfolios: AEGON/Transamerica Series Fund, Inc. -Each Portfolio has an Initial Class of Shares and a Service Class of Shares AEGONBond Asset Allocation - Conservative Portfolio Asset Allocation - Growth Portfolio Asset Allocation - Moderate Portfolio Asset Allocation - Moderate Growth Portfolio American Century International American Century Large Company Value Capital Guardian U.S. Equity Capital Guardian Global Capital Guardian Value Clarion Real Estate Securities Federated Growth & Income Great Companies - Americasm Great Companies -Technologysm J.P. Morgan Enhanced Index J.P. Morgan Mid Cap Value Janus Growth Jennison Growth Marsico Growth Mercury Large Cap Value MFS High Yield Munder Net50 PIMCO Total Return Salomon All Cap Select+ Aggressive Select+ Conservative Select+ Growth & Income Templeton Great Companies Global T. Rowe Price Equity Income T. Rowe Price Growth Stock T. Rowe Price Small Cap Third Avenue Value Transamerica Balanced Transamerica Equity Transamerica Convertible Securities Transamerica Growth Opportunities Transamerica Money Market AMENDED SCHEDULE A (continued) Portfolios Transamerica Small/Mid Cap Value (continued) Transamerica U.S. Govermuent Securities Transamerica Value Balanced Van Kampen Active International Allocation Van Kampen Asset Allocation Van Kampen Emerging Growth

Exhibit 99.1 FOR IMMEDIATE RELEASE 25 April 2012 For Additional Information: Company contact: Cecil Whitmore Investor Relations Littlefield Corporation 512-476-5141 [email protected] Littlefield Corporation Announces Q1 2012 Results Littlefield Corporation (OTCQB: LTFD) today announced results for the first quarter of 2012. The Company achieved its second highest record level of quarterly bingo revenue in the Company’s history and net income of $238,761. The Q1 2012 results include approximately $179,000 of notable items: v $35,000 of expense associated with hall start-ups in Texas v $113,000 of legal expense for Texas and South Carolina, and v $31,000 for non-cash stock-based compensation. The Q1 2011 results include approximately $244,000 of notable items: v $135,000 of expense associated with hall start-ups in Texas v $82,000 of legal expense for South Carolina, Texas and its Furtney litigation, v $25,000 for non-cash stock-based compensation and $2,000 of asset disposals. Q1 2012 EarningsPage: 2 HIGHLIGHTS Highlights of the first quarter compared to the prior year follow: 1. Total consolidated Q1 2012 revenue of $2,876,393 was the second highest record of first quarter bingo revenue and was up $24,584 or 1% from last year. 2. Total consolidated Q1 2012 gross profit including the noted items was $1,063,410 versus $1,206,929 in the prior year. 3. Total gross profit margin was 37% of revenue versus 42% of revenue in 2011. 4. Net income including the noted items was $238,761 versus $410,686 last year. The following report is based upon unaudited financial statements. REVENUE Q1 2012 Q1 2011 Variance % Change LTFD Corporation 1% Entertainment 1% Other NM The revenue changes reflect the increasing contribution of new halls acquired throughout last year which offset the effects of two halls closed at the end of last year and weakness in one of our regional submarkets.Other revenue reflects ancillary revenue not included in Entertainment. Our historical trend of revenue changes, which will be shown in the webcast and conference call on Friday, correlates closely with the recessionary trends of the American economy and the effect of renovations and start-up of halls in Texas. GROSS PROFIT Q1 2012 Q1 2011 Variance % Change LTFD Corporation (12%) Entertainment (12%) Other NM Gross profit % 37% 42% The Entertainment gross profit decrease was mainly attributed to the impact of increasing the number of managers at the Company to support our anticipated future growth in number of bingo halls and increased marketing expenses in certain regional submarkets. Q1 2012 Earnings Page: 3 CORPORATE OVERHEAD Variance % Change FIRST QUARTER (1%) Corporate overhead approximated the same level incurred in the prior year’s quarter. See the reconciliation of GAAP and Non-GAAP financial measures which follows. NET INCOME and BASIC EPS Variance Q1 Net Income excluding noted items Q1 Net Income Q1 Basic Earnings per share Q1 Basic weighted average shares outstanding Jeffrey L. Minch, President and Chief Executive Officer of Littlefield Corporation, offered the following comments: “We achieved the second highest level of bingo revenue in the history of the Company.This is notable given the challenge to offset the impact of closing two bingo halls whose leases expired in accordance with the terms of those leases in December last year. We continued to reduce the unfavorable impact on earnings of start-up operations and expect to see one of the three reach breakeven this year.Legal costs this quarter were higher than we should see towards the end of this year. We continue to evaluate opportunities to improve our financial performance and we will continue to diligently pursue them through acquisitions, improvements in returns from existing bingo halls and the deployment of better management and modern marketing. I would like to thank the employees of the Company for their continued dedication and efforts to attain these favorable results despite challenging economic conditions. I look forward to answering your questions during the Conference Call on Friday.” Q1 2012 EarningsPage: 4 Earnings will be discussed in a conference call on Friday, April 27, 2012, at 11:00 AM CST.Interested parties may participate by calling (877) 407-9205 and requesting the Littlefield Earnings Conference Call. The conference call can also be heard live on the internet at www.investorcalendar.com type in the Littlefield ticker symbol “ltfd”. Questions may be sent to President and CEO, Jeffrey L. Minch in advance at [email protected], or in person by calling (512) 476-5141.Questions may also be asked during the question and answer period at the end of the conference call. RECONCILIATION OF GAAP AND NON-GAAP MEASURES In addition to disclosing results determined in accordance with GAAP, the Company discloses three non-GAAP financial measures: gross profit excluding start-up activities, corporate overhead and income (loss) from continuing operations excluding noted items.Management includes these non-GAAP financial measures to assist investors in assessing the Company’s operational performance and considers such non-GAAP measures to be important supplemental measures of performance.The Company presents these non-GAAP results as a complement to results provided in accordance with GAAP.Management uses these non-GAAP measures to manage and assess profitability and performance, to assist the public in measuring the Company’s performance, to allocate resources and relative to historical performance, to enable comparability between periods. Gross profit Q1 2012 Q1 2011 Gross profit (GAAP basis) Hall start-up activities Gross profit (non-GAAP basis) Corporate overhead Q1 2012 Q1 2011 General and administrative expenses (GAAP basis) Stock-based compensation Noted legal expenses Depreciation and amortization Corporate overhead (non-GAAP basis) Q1 2012 EarningsPage: 5 Income (loss) from continuing operations Q1 2012 Q1 2011 Operating income (loss) (GAAP basis) Hall start-up activities Stock-based compensation Noted legal expenses Other asset disposals Income (loss) excluding noted items (non-GAAP basis) In accordance with the safe harbor provisions of the Private Securities Reform Act of 1995: except for historical information contained herein, certain matters set forth in this press release are forward looking statements that are subject to substantial risks and uncertainties, including government regulation, taxation, competition, market risks, customer attendance, spending, general economic conditions and other risks detailed in the Company’s Securities and Exchange Commission filings and reports. Investors are always cautioned to be careful in drawing conclusions from a single press release, the Company’s performance in a single quarter or the individual opinions of any member of the Company’s management in making their individual investment decisions. 30

Title: Putting my skeleton in my will Question:So my brother and I have a verbal agreement that whoever dies first, the other gets their skeleton. For display in a coffee table, or dressed up for holidays, whatever. What do I need to do legally to facilitate this happening? I'm in Florida Answer #1: IANAL. Florida Statute 497.386 (I’m on mobile and not entirely sure how to link, sorry!) states that human remains can only be held by a licensed body. But it also states that remains cannot be held for more than 24hrs after death unless refrigerated, embalmed, or “otherwise preserved in a manner approved by the licensing authority”. You could, potentially, request that the skeletonizing of your remains be approved by said licensing authority, and that the byproducts of that process be given to your brother (or his to you) to pay to have it articulated (put back together like an anatomy class skeleton, usually with a series of wires and springs) by someone who specializes in anatomical models. But then you have to start asking whether or not skeletonizing human remains constitutes “abuse of a corpse” under 872.06, which mostly deals with necrophilia, but is also designed to counter the disarticulation/dismemberment of a corpse. 872.06 specifically states that a “bona fide medical purpose” doesn’t constitute a violation, so I guess it all comes down to whether or not you can successfully argue that having your sibling’s skeleton for a display piece should be considered a “bona fide medical purpose”. If I’m wrong in my reading of any of these statutes, I’d love for someone with more experience to tell me as such. In my state the laws are way different so I would love to know more :)Answer #2: Now I don't know anything about the legality of this at all, but I do know that it is extremely difficult and time-consuming to de-flesh, clean, and articulate a full-sized animal. I clean skulls and bones (of animals) as a hobby and small side business. I don't articulate skeletons but they sell for hundreds to tens of thousands of dollars. Essentially you have to rot the flesh off in buckets of water, let a bunch of stinky beetles eat the flesh off, or boil the flesh off. Then you have to articulate the skeleton. I mean... you're going to do this... to your BROTHER? You're going to take a knife to his face, gouge out his eyes, peel his scalp off, cut his abdomen open and take out all his organs, et cetera? You have to remove as much flesh as possible before starting the bone-cleaning process. And what, throw the scraps in the trash? And then take his de-fleshed remains and throw them in a box to rot clean? While you watch, or what? Then you're going to glue his teeth one by one back into his skull... drill holes in his bones to wire them up... bleh. I mean I really like skeletons and skulls but this is just creepy. I know this is probably a joke post but it reminded me how a friend told me one time he would leave me his skull. And I thought it was cool until I envisioned peeling the skin off his dead severed head...BLAH! And if it's not *you* doing it, then *somebody else* will do it, which doesn't make it much better!Answer #3: Well.... how perfectly creepy. You can put anything in your will, as long as it's yours. But that doesn't answer the question. It is legal, as I recall, to be in possession of a human skull. More than that, no. I don't know where you are, but here is [CA's statute] (http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=7054.&lawCode=HSC) which I doubt differs, in any margin, to any other state.Answer #4: What about getting one of those full body MRI/CAT scan whatsitsmajigs, then taking that scan to a place that does 3d printing?Answer #5: Cremation may actually be the answer, if you can get the crematorium to skip the part about pulverizing the bones after the squishy parts have been burnt off. Answer #6: I know I can't link youtube videos but there is a youtube channel run by Caitlin Doughty called 'Ask A Mortician'. She makes a lot of interesting videos and one of the subjects she covered is something like this. Mods if this isn't allowed please let me know. I know that it really depends on what you died from, the hospital/where you died, finding someone who is willing, trained, and licensed to handle something like this.Answer #7: >I'm in Florida We already figured that out from the question.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM N-PX ANNUAL REPORT OF PROXY VOTING RECORD OF REGISTERED MANAGEMENT INVESTMENT COMPANY Investment Company Act File Number : 811-653 Name of Registrant: Putnam Income Fund Address of Principal Executive Offices: One Post Office Square Boston, Massachusetts 02109 Name and address of agent of service: James P. Pappas, Vice President Putnam Income Fund One Post Office Square Boston, Massachusetts 02109 CC: John W. Gerstmayr, Esq. Ropes & Gray LLP One International Place Boston, Massachusetts 02110 Registrant's telephone number including area code: (617) 292-1000 Date of fiscal year end: 10/31/2008 Date of reporting period: 07/01/2008 - 06/30/2009 Item 1: Proxy Voting Record Registrant : Putnam Income Fund ACCREDITED MTG LN TR Ticker Security ID: Meeting Date Meeting Status CUSIP9 004375CU3 01/29/2009 Take No Action Meeting Type Country of Trade Consent United States Issue No. Description Proponent Mgmt Rec Vote Cast For/Agnst Mgmt 1 WAIVER 1 Mgmt N/A TNA N/A 2 WAIVER 2 Mgmt N/A TNA N/A 3 WAIVER 3 Mgmt N/A TNA N/A ACCREDITED MTG LN TR Ticker Security ID: Meeting Date Meeting Status CUSIP9 004375EH0 08/15/2008 Take No Action Meeting Type Country of Trade Consent United States Issue No. Description Proponent Mgmt Rec Vote Cast For/Agnst Mgmt 1 I DIRECT THE TRUSTEE TO Mgmt N/A TNA N/A FULLY AND FOREVER WAIVE, ANY SERVICER EVENT DEFAULT AS DESCRIBED IN THE ACCOMPANYING NOTICE DATED JULY 18, 2008. 2 I DIRECT THE TRUSTEE TO Mgmt N/A TNA N/A TERMINATE THE SERVICER AS DESCRIBED IN THE ACCOMPANYING NOTICE DATED JULY 18, 2008. ACCREDITED MTG LN TR Ticker Security ID: Meeting Date Meeting Status CUSIP9 004375CU3 12/10/2008 Voted Meeting Type Country of Trade Consent United States Issue No. Description Proponent Mgmt Rec Vote Cast For/Agnst Mgmt 1 SERVICER EVENT DEFAULT AS Mgmt N/A For N/A DESCRIBED IN THE ACCOMPANYING NOTICE DATED NOVEMBER 4, 2008, ASSUMING THAT A SERVICER EVENT OF DEFAULT HAS OCCURRED AND/OR THE POTENTIAL SERVICER EVENT OF DEFAULT OCCURS. Any ballot marked 'Abstain' is considered to have been voted. Ballots marked 'Abstain' are considered to have been voted against management's recommendation if management's recommendation is 'For' or 'Against,' and for management’s recommendation if management’s recommendation is ‘Abstain.’ Where management has recommended that shareholders 'Abstain' from voting on a ballot item, a ballot marked 'For' or 'Against' is considered to have been voted against management's recommendation to 'Abstain.' Where management has made no recommendation on a ballot item, 'NA' is used to indicate that there is no management recommendation that a shareholder may vote 'For' or 'Against.' SIGNATURES Pursuant to the requirements of the Investment Company Act of 1940, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Registrant: Putnam Income Fund By: /s/ Charles E. Porter Name: Charles E. Porter Title: Executive Vice President, Associate Treasurer, Principal Executive Officer and Compliance Liaison Date: August 3, 2009

ITEMID: 001-118729 LANGUAGEISOCODE: ENG RESPONDENT: RUS BRANCH: CHAMBER DATE: 2013 DOCNAME: CASE OF YEVGENIY IVANOV v. RUSSIA IMPORTANCE: 4 CONCLUSION: Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses) JUDGES: Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković TEXT: 5. The applicant was born in 1979 and lives in Cheboksary. 6. On 20 September 2002 the applicant was charged with manslaughter, an offence under Article 111 § 4 of the Criminal Code. The charge was based, in particular, on the investigator’s interviews with Mr M., Mr O. and Mr I., eyewitnesses to the incident. 7. Mr M. and Mr O. stated that on 28 August 2002 they and their friend Mr S. had had a fight with three strangers. Mr S., drunk, had kicked a red VAZ car which was passing by. The driver and two passengers had emerged from the car and the driver had hit Mr S. twice in the face. Seven or eight people had then joined in with the strangers and started to hit them. Mr M., Mr O. and Mr. S. had all lost consciousness. On the next day, 29 August 2001, Mr S. had been found lying in the street by a passer-by and had been taken to hospital, where he had died from the wounds received during the fight. 8. During subsequent interviews with the investigator, Mr M. and Mr O. changed their testimony slightly, stating that Mr S. had fallen immediately after the driver had hit him in the face. They had not seen whether Mr S. had been hit by any of the other persons involved in the fight. 9. Mr I. stated to the investigator that on 28 August 2002 he had been sitting in a bar. He had seen a red VAZ car stop near the bar and three people get out of it. Two of them had entered the bar, while the driver had approached a group of three people outside. They had started to argue and then to fight. He had left immediately. 10. The trial started on 21 January 2003 before the Kalininskiy District Court of Cheboksary. The applicant pleaded not guilty. He admitted that on 30 August 2002 he had had a quarrel with three strangers. He had hit one of them twice in the chest and retreated to a nearby bar. He had seen the men leave the scene. He insisted that the incident had happened on 30 August 2002 rather than on 28 August 2002. He was sure of the date because he had taken his mother to the tax office on that day. He requested the court to hear the tax inspector, Ms Sh., who could confirm that his mother had paid her taxes on 30 August 2002. His request was rejected on the ground that a statement by Ms Sh. would not be relevant. 11. Several witnesses attended the trial. One of them stated to the court that he had seen the applicant in the bar during the evening of 28 August 2002. He had not, however, seen the fight. Another witness testified that during the evening of 28 August 2008 he had seen Mr M. with bruises on his face, and that on the next day Mr O. had told him that he, Mr M. and Mr S. had been beaten up by three strangers. Mr S.’s wife and brother testified that they had seen Mr S. for the last time on the morning of 28 August 2002. Another witness told the court that he had found Mr S. badly injured and unconscious in the street not far from the bar one morning at the end of August 2002. Another witness stated that during the evening of 28 August 2002 he had driven three men to a bar in his red VAZ car. Another red VAZ car had been parked near the bar and three persons had been standing nearby talking among themselves. He had overheard them saying that they had hit someone who had kicked the wheel of their car. Some time before that, he had seen a man carrying another man. 12. The trial court also examined an expert medical report submitted by the prosecutor. The finding of the medical experts was that Mr S. had died of a craniocerebral injury. They also recorded numerous bruises on his head and body and found that he had received no fewer than nine blows. 13. Finally, a police report stating that Mr S. had been discovered lying in the street on 29 August 2002 was also examined. 14. The witnesses Mr O., Mr M., and Mr I. did not attend the trial. On 21 January 2003 the Kalininskiy District Court ordered bailiffs to ensure their appearance in court on 22 January 2003. 15. It can be seen from the bailiff’s report of 22 January 2003 that between 7.45 and 9.35 a.m. on that day he visited the addresses for Mr O. and Mr I. provided during the preliminary investigation. It was confirmed by the new occupants of the flat that Mr O. no longer lived at that address. Mr I. was at work and the bailiffs left the summons to appear with his daughter. 16. On 22 January 2003 the witnesses did not attend. The applicant insisted that the court obtain their attendance. The Kalininskiy District Court adjourned the hearing until 3 February 2003 and again ordered the bailiffs to ensure the witnesses’ appearance in court. 17. It can be seen from the bailiffs’ reports dated 31 January and 3 February 2003 that Mr O. no longer lived at the address indicated in the case file, as confirmed by the owner of the flat. They visited Mr O.’s mother, who stated that her son lived in Cheboksary but that she did not know either his home address or the address of his employer. According to Mr M.’s mother, Mr M. lived on the university campus in Cheboksary. When the bailiffs visited the campus, Mr M. was not at home. They left the summons to appear with the campus guard. According to Mr I.’s daughter, Mr I. was at his country house. She agreed to pass the summons onto him. 18. The witnesses did not attend the hearing of 3 October 2003. The Kalininskiy District Court ordered the bailiffs to ensure the witnesses’ appearance in court on 7 February 2003. 19. The bailiffs’ report dated 7 February 2003 states that on that day the bailiffs visited the addresses for Mr I. and Mr O. provided during the preliminary investigation. According to his daughter, Mr I. was on a business trip outside the Chuvashiya Republic and she did not know when he was to return. Mr O. no longer lived at the address indicated in the case file. 20. On 7 February 2003 a new decision was issued by the Kalininskiy District Court, ordering bailiffs to ensure the witnesses’ attendance on 11 February 2003. 21. On 10 February 2003 the bailiffs went again to Mr I.’s address and discovered that he had not yet returned from his business trip. They then went to the address for Mr O. indicated in the case file and the new occupants of the flat told them for a fourth time that Mr O. had moved out. The bailiffs then visited Mr O.’s mother, who told them that she did not know her son’s address in Cheboksary. They also visited Mr M.’s mother, who stated that her son did not live with her. 22. On 11 February 2003 the witnesses did not attend. The prosecutor asked for the transcript of the statements given by Mr O., Mr M., and Mr I. to the investigator to be read out. The applicant and his counsel did not object. The transcript was read out. On the same day, the Kalininskiy District Court ordered the bailiffs to ensure the witnesses’ attendance on 12 February 2003. 23. On 12 February 2003 the bailiffs went to the addresses for Mr I. and Mr O. indicated in the case file. Neither of them was at home. The bailiffs noted in their report of the same date that in any event it had long been known that Mr O. did not live at that address and that Mr I. was on an extended business trip. 24. At the hearing of 12 February 2003, the applicant insisted that the court obtain the attendance of Mr O., Mr M., and Mr I., and objected to the termination of the trial as long as those witnesses had not been questioned. The Kalininskiy District Court nevertheless decided to terminate the trial on the ground that all attempts to obtain the attendance of the witnesses had been unsuccessful. 25. On 13 February 2003 the Kalininskiy District Court of Cheboksary convicted the applicant of manslaughter, finding that his guilt was sufficiently established by the statements made by Mr O., Mr M., and Mr I. during the pre-trial investigation, the statements of the other witnesses made during the trial, and the medical and police reports. The court rejected the applicant’s arguments that he had hit Mr S. on the chest rather than on the head and that Mr S. had left the scene uninjured, finding that they were refuted by the testimony of Mr O. and Mr M., who had witnessed the incident. The applicant was sentenced to eleven years and six months’ imprisonment. 26. In his grounds of appeal the applicant complained, in particular, that the District Court had not secured the attendance of Mr O., Mr M., and Mr I. at the trial. He submitted that he had been misled into agreeing to the reading out of the transcript of their statements to the investigator. The judge had not warned him that the reading out of the transcript would substitute for the questioning of the witnesses in court. Throughout the trial he had insisted that those witnesses should be questioned. He had also objected to the termination of the trial as long as the witnesses had not been questioned. 27. On 26 February 2003 the Kalininskiy District Court held that Mr O., Mr M., and Mr I. had not been questioned in court because, despite the efforts of the bailiffs, they could not be traced. In such circumstances it was permissible for the witnesses’ statements made at the pre-trial stage to be read out at the trial by virtue of Article 281 of the Code of Criminal Procedure. 28. On 27 March 2003 the Supreme Court of the Chuvashiya Republic upheld the judgment on appeal. The appeal court remained silent on the issue of the attendance of witnesses. 29. Manslaughter – that is, the premeditated infliction of serious injuries resulting in accidental death – carries a punishment of five to fifteen years’ imprisonment (Article 111 § 4 of the Criminal Code). 30. The Code of Criminal Procedure of the Russian Federation provides that witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation can be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281). 31. If a witness fails to comply with a summons to appear without a good reason, the court may order the police or bailiffs to bring him to the courtroom by force (Article 113). 32. Article 413 of the Code of Criminal Procedure provides for a possibility to reopen criminal proceedings on the basis of a finding of a violation of the Convention by the European Court of Human Rights. VIOLATED_ARTICLES: 6 VIOLATED_PARAGRAPHS: 6-1 6-3 VIOLATED_BULLETPOINTS: 6-3-d

EXHIBIT 31.1 CERTIFICATION PURSUANT TO SECTION -OXLEY ACT OF 2002 I, Locksley Samuels, certify that: 1. I have reviewed this Quarterly Report on Form 10-Q of Cambridge Projects Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant's other certifying officer 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, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to me 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 my 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 over financial reporting; and 5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions); a) All significant deficiencies and material weaknesses in the designor operation of internal control over financial reporting which arereasonably likely to adversely affect the registrant'sability 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: January 31, 2014 By: /s/ Locksley Samuels Locksley Samuels, President, CEO, CFO, Treasurer, and Director

Exhibit 10.1 AMENDMENT NUMBER ONE TO THE GRANITE CONSTRUCTION INCORPORATED AMENDED AND RESTATED 1999 EQUITY INCENTIVE PLAN   The Granite Construction Incorporated Amended and Restated 1999 Equity Incentive Plan (the “Plan”) is hereby amended as follows:   1.           Section 3.3(d) of the Plan is hereby replaced in its entirety as follows:   (d)           Performance Shares and Performance Units.  Subject to adjustment as provided in Section 5.3, no Employee may be granted (i) Performance Shares which could result in such Employee receiving more than one hundred thousand (100,000) shares of Stock for each full fiscal year of the Company contained in the Performance Period for such Award, or (ii) Performance Units which could result in such Employee receiving more than one million five hundred thousand dollars ($1,500,000) in cash and more than one hundred thousand (100,000) shares of stock, for each full fiscal year of the Company contained in the Performance Period for such Award.   2.           Section 9.4 of the Plan is hereby replaced in its entirety as follows:   9.4           Measurement of Performance Goals.  Performance Goals shall be established by the Committee on the basis of targets to be attained (“Performance Targets”) with respect one or more measures of business or financial performance (each, a “Performance Measure”).  Performance Measures shall have the same meanings as used in the Company’s financial statements, or if such terms are not used in the Company’s financial statements, they shall have the meaning applied pursuant to generally accepted accounting principles, or as used generally in the Company’s industry.  Performance Targets may include a minimum, maximum, target level and intermediate levels of performance, with the ultimate value of a Performance Share or Performance Unit Award determined by the level attained during the applicable Performance Period.  A Performance Target may be stated as an absolute value or as a value determined relative to a standard selected by the Committee.  Performance Measures shall be calculated with respect to the Company and each Subsidiary Corporation consolidated therewith for financial reporting purposes or such division or other business unit thereof as may be selected by the Committee.  For purposes of the Plan, the Performance Measures applicable to an Award shall be calculated in accordance with generally accepted accounting principles, but prior to the accrual or payment of any Performance Share or Performance Unit Award for the same Performance Period and excluding the effect (whether positive or negative) of any change in accounting standards or any extraordinary, unusual or nonrecurring item, as determined by the Committee, occurring after the establishment of the Performance Goals applicable to the Award.  Performance Measures may be one or more of the following as determined by the Committee: (a) revenue, (b) operating income, (c) pre-tax profit, (d) net income, (e) gross margin, (f) operating margin, (g) earnings per share, (h) return on stockholder equity, (i) return on capital, (j) return on net assets, (k) economic value added, (l) cash flow and operating cash flow, (m) net operating profits after taxes, (n) net asset value, (o) cost of capital and weighted average cost of capita, (p) economic profit, (q) return on assets, (r) earnings before income tax and depreciation (EBITDA), (s) earnings before income tax (EBIT), (t) return on equity, (u) operating income and adjusted operating income, (v) gross income, (w) return on invested capital, (x) overhead, (y) net operating assets, and (z) safety incident rate (including total injury incident rate, OSHA recordable injury rate and lost time injury rate).   3.           All other provisions of the Plan shall remain in full force and effect.   To record the adoption of this Amendment Number One, Granite Construction Incorporated has caused the execution of the same by its duly authorized officer.   Dated:  May 19, 2008                                                                          GRANITE CONSTRUCTION INCORPORATED  /s/ William G. Dorey                                                                                                                  William G. Dorey President & CEO  

EX-99.906CERT Giant 5 Funds Exhibit 12(b) to Form N-CSR CERTIFICATIONS PURSUANT TO SECTION SARBANES-OXLEY ACT OF 2002 I, Michael G. Willis , Chief Executive Officer of the Giant 5 Funds, certify that, to my knowledge: 1 . The Form N-CSR of the registrant (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2 . The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the registrant. /s/ Michael G. Willis Date: June 5, 2009 Michael G. Willis President (Principal Executive Officer) A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to the registrant and will be retained by the registrant and furnished to the Securities and Exchange Commission (the "Commission") or its staff upon request. This certification is being furnished to the Commission solely pursuant to 18 U.S.C. (S) 1350 and is not being filed as part of the Form N-CSR with the Commission. I, Paul D. Myers , Treasurer and Principal Financial Officer of the Giant 5 Funds, certify that, to my knowledge: 1. The Form N-CSR of the registrant (the "Report") fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and 2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the registrant. /s/ Paul D. Myers Date: June 5, 2009 Paul D. Myers Treasurer (Principal Financial Officer) A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to the registrant and will be retained by the registrant and furnished to the Securities and Exchange Commission (the "Commission") or its staff upon request. This certification is being furnished to the Commission solely pursuant to 18 U.S.C. (S) 1350 and is not being filed as part of the Form N-CSR with the Commission.

Exhibit 10.4     REGISTRATION RIGHTS AGREEMENT   This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of August 20, 2010, by and among SMSA Palestine Acquisition Corp., a Nevada corporation (the “Company”) and the investors signatory hereto (each, including their respective successors and assigns, an “Investor” and collectively, the “Investors”).   WHEREAS, in connection with the Securities Purchase Agreement by and among the parties hereto and the other parties signatory thereto dated July 23, 2010 (the “Purchase Agreement”), the Company has agreed, upon the terms and subject to the conditions set forth in the Purchase Agreement, to issue and sell to each Investor a certain number of Shares and Warrant Shares of the Company; and   WHEREAS, in accordance with the terms of the Purchase Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “Securities Act”), and applicable state securities laws. contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each of the Investors hereby agree as follows:   1. Definitions.  Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement will have the respective meanings given such terms in the Purchase Agreement.  As used in this Agreement, the following terms have the respective meanings set forth in this Section 1:   “2010 Delivery Date” means the date on which the 2010 Make Good Shares are required to be delivered to the Investors pursuant to the Make Good Escrow Agreement.   “2011 Delivery Date” means the date on which the 2011 Make Good Shares are Agreement.   “Advice” has the meaning set forth in Section 8(d).   “Commission Comments” means written comments pertaining solely to Rule 415 which are received by the Company from the Commission to a filed Registration Statement, a copy of which shall have been provided by the Company to the Holders, which either (i) requires the Company to limit the number of Registrable Securities which may be included therein to a number which is less than the number sought to be included thereon as filed with the Commission or (ii) requires the Company to either exclude Registrable Securities held by specified Holders or deem such Holders to be underwriters with respect to Registrable Securities they seek to include in such Registration Statement.   “Cut Back Shares” has the meaning set forth in Section 2(b).   “Effective Date” means, as to a Registration Statement, the date on which such Registration Statement is first declared effective by the Commission.       - 1 -     “Effectiveness Date” means (a) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a), the earlier of: (i) the 150th day following the Closing Date and (ii) the fifth Trading Day following the date on which the Company is notified by the Commission that the initial Registration Statement will not be reviewed or is no longer subject to further review and comments; and (b) with respect to any additional Registration the 90th day following the applicable Filing Date for such additional Registration Statement(s) and (ii) the fifth Trading Day following the date on which the Company is notified by the Commission that such additional Registration Statement(s) will not be reviewed or is no longer subject to further review; provided, that, if the Commission reviews and has written comments to such filed Registration Statement that would require the filing of a pre-effective amendment thereto with the Commission, then the Effectiveness Date under this clause (b)(i) shall be the 120th day following the applicable Filing Date.   “Effectiveness Period” means, as to any Registration Statement required to be filed pursuant to this Agreement, the period commencing on the Effective Date of such Registration Statement and ending on (a) the date that all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders of the Registrable Securities included therein, or (b) such time as all of the Registrable Securities covered by such Registration Statement may be sold by the Holders without volume restrictions pursuant to Rule 144 as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company's transfer agent and the affected Holders.     “Filing Date” means the 30th day following (a) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a), the Closing Date; and (b) with respect to any additional Registration Statements required to be filed pursuant to Section 2(a), the Effective Date for the last Registration Statement filed pursuant to this Agreement under Section 2(a); (c) with respect to any additional Registration Statements required to be filed due to SEC Restrictions, the applicable Restriction Termination Date; (d) with respect to a Registration Statement required to be filed under Section 2(c), the date on which the Company becomes eligible to utilize Form S-3 to register the resale of Registrable Securities, (e) with respect to the Registration Statement required to be filed under Section 2(d), the 2010 Delivery Date, and (f) with respect to the Registration Statement required to be filed under Section 2(e), the 2011 Delivery Date.   “FINRA” means the Financial Industry Regulatory Authority, Inc.   “Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities and, if other than an Investor, a Person to whom the rights hereunder have been properly assigned pursuant to Section 7 hereof.   “Indemnified Party” has the meaning set forth in Section 5(c).   “Indemnifying Party” has the meaning set forth in Section 5(c).   “Losses” has the meaning set forth in Section 5(a).   “New York Courts” means the state and federal courts sitting in the City of New York, Borough of Manhattan.       - 2 -     a deposition), whether commenced or threatened.   “Prospectus” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated   “Registrable Securities” means: (i) the PIPE Common Shares, (ii) the Warrant Shares, (iii) the 2010 Make Good Shares, (iv) the 2011 Make Good Shares, and (v) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event, or any price adjustment as a result of such stock splits, reverse stock splits or similar events with respect to any of the securities referenced in (i) – (iv) above.  Notwithstanding the foregoing, a security shall cease to be a Registrable Security for purposes of this Agreement from and after such time as the Holder of such security may resell such security without volume restrictions under Rule 144, as determined by the counsel to the Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Company’s transfer agent and the affected Holders.   “Registration Statement” means the initial registration statement required to be filed in accordance with Section 2(a) and any additional registration statements required to be filed under this Agreement, including in each case the Prospectus, amendments and supplements to such registration statements or Prospectus, including pre- and post- effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference therein.   “Restriction Termination Date” has the meaning set forth in Section 2(b).   Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.   “Rule 415” means Rule 415 promulgated by the Commission pursuant to the     “SEC Restrictions” has the meaning set forth in Section 2(b).   “Selling Holder Questionnaire” means the selling security holder notice and questionnaire attached as Annex B hereto.       - 3 -     “Trading Market” means any of the New York Stock Exchange, the NYSE AMEX, the Market, the OTCBB or any other market on which the Common Stock is listed or quoted for trading on the date in question.   2. Registration.   (a) On or prior to the applicable Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all Registrable Securities (other than in the case of the initial Registration Statement to be filed under this Section 2(a), the 2010 Make Good Shares and the 2011 Make Good Shares) not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415.  Each Registration Statement required to be filed under this Agreement shall be filed on Form S-1 (or on such other form appropriate for such purpose) and contain (except if otherwise required pursuant to written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur unless such characterization is consistent with written information provided by the Holder in the Selling Holder Questionnaire) the “Plan of Distribution” attached hereto as Annex A.  The Company shall cause each Registration Statement required to be filed under this Agreement to be declared effective under the Securities Act as soon as possible but, in any event, no later than its Effectiveness Date, and shall use its reasonable best efforts to keep each such Registration Statement continuously effective during its entire Effectiveness Period.  By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of each Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule). If for any reason other than due solely to SEC Restrictions, a Registration Statement is effective but not all outstanding Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare and file by the applicable Filing Date an additional Registration Statement to register the resale of all such unregistered to Rule 415.   (b) Notwithstanding anything to the contrary contained in this Section 2, if the Company receives Commission Comments, and following discussions with and responses to the Commission in which the Company uses its reasonable best efforts and time to cause as many Registrable Securities (other than the 2010 Make Good Shares and 2011 Make Good Shares, unless the 2010 Delivery Date or 2011 Delivery Date, as the case may be, shall have occurred) for as many Holders as possible to be included in the Registration Statement filed pursuant to Section 2(a) without characterizing any Holder as an underwriter unless such characterization is consistent with written information provided by the Holder in the Selling Holder Questionnaire (and in such regard uses its reasonable best efforts to cause the Commission to permit the affected Holders or their respective counsel to participate in Commission conversations on such issue together with the Company’s counsel, and timely conveys relevant information concerning such issue with the affected Holders or their respective counsel) (the day that such discussions and responses are concluded shall be referred to as the “Tolling Date”), the Company is unable to cause the inclusion of all Registrable Securities, then the Company may, following not less than three (3) Trading Days prior written notice to the Holders (i) remove from the Registration Statement such Registrable Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities, in each case as the Commission may require in order for the Commission to allow such Registration Statement to become effective; provided, that in no event may the Company characterize any Holder as an underwriter unless such characterization is consistent with written information provided by the Holder in the Selling Holder Questionnaire (collectively, the “SEC       - 4 -     Restrictions”).  Unless the SEC Restrictions otherwise require, any cut-back imposed pursuant to this Section 2(b) shall be allocated: (i) first, upon the holders of any other securities of the Company who have the right to have such securities included in the Registration Statement and (ii) second, among the Registrable Securities of the Holders on a pro rata basis.  No liquidated damages under Section 2(f) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for such Registration Statement will be tolled until such time as the Company is able to effect the registration of the Cut Back Shares in accordance with any SEC Restrictions if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144 (such date, the “Restriction Termination Date”).  From and after the Restriction Termination Date, all provisions of this Section 2 shall again be applicable to the Cut Back Shares (which, for avoidance of doubt, retain their character as “Registrable Securities”) if such Registrable Securities cannot at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144 so that the Company will be required to file with and cause to be declared effective by the Commission such additional ultimately cause to be covered by effective Registration Statements all Registrable Securities.  For the avoidance of doubt, the time period starting from the Tolling Date and ending with the Restriction Termination Date shall be excluded in calculating the applicable Effectiveness Date.   (c) Promptly following any date on which the Company becomes eligible to use a registration statement on Form S-3 to register Registrable Securities for resale, the Company shall file a Registration Statement on Form S-3 covering all Registrable Securities (or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.  Such Registration Statement shall contain (except if otherwise required pursuant to written comments Distribution” attached hereto as Annex A.  The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period.  By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).   (d) On or prior to its Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the 2010 Make Good Shares on Form S-3 if the Company is then eligible to utilize such Form (or if the Company is not then eligible to utilize such form of registration, it shall utilize such other available form appropriate for such purpose) and shall cause such Registration Statement to be filed by the Filing Date for such Registration Statement and declared effective under the Securities Act as soon as possible thereafter, but in any event prior to the Effectiveness Date therefor.  Such Registration Statement shall contain (except if otherwise required pursuant to written comments received       - 5 -     from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as Annex A.  The Company shall use its reasonable best efforts to keep such Registration Statement continuously effective under the Securities Act during the entire Effectiveness Period which is applicable to it.  By 5:00 p.m. (New   (e) On or prior to its Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of the 2011 Make Good written comments received from the Commission upon a review of such Registration Statement, other than as to the characterization of any Holder as an underwriter, which shall not occur without such Holder’s consent) the “Plan of the Securities Act during the entire Effectiveness Period which is applicable to it.  By 5:00 p.m. (New York City time) on the Business Day immediately following the Effective Date of such Registration Statement, the Company shall file with the Commission in accordance with Rule 424 under the Securities Act the final prospectus to be used in connection with sales pursuant to such Registration Statement (whether or not such filing is technically required under such Rule).   (f) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the Registrable Securities required under this Agreement to be included therein) (if the Company files a Registration Statement without affording the 3(a) hereof, the Company shall not be deemed to have satisfied this clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or prior to its required Effectiveness Date or if by the Business Day immediately following the Effective Date the Company shall not have filed a “final” prospectus for the Registration Statement with the Commission under Rule 424(b) in accordance with the terms hereof (whether or not such a prospectus is technically required by such Rule), or (iii) after its Effective Date, without regard for the reason thereunder or efforts therefor, such Registration Statement ceases for any reason to be effective and available to the Holders as to the Registrable Securities to which it is required to cover at any time prior to the expiration of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of clauses (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in cash, as partial liquidated damages and not as a penalty, equal to 0.5% of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement.  The parties agree that in no event will the Company be liable for liquidated damages under this Agreement in excess of 0.5% of the aggregate Investment Amount of the Holders in any single month and the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be six percent (6%) of the aggregate Investment Amount paid by such Holder pursuant to the Purchase Agreement.  The partial liquidated damages pursuant to the terms hereof cure of an Event (except in the case of the first Event Date), and shall cease to accrue (unless earlier cured) upon the expiration of the Effectiveness Period.       - 6 -     (g) Each Holder agrees to furnish to the Company a completed Questionnaire in the form attached to this Agreement as Annex B (a “Selling Holder Questionnaire”).  The Company shall not be required to include the Registrable Securities of a Holder in a Registration Statement and shall not be required to pay any liquidated or other damages under Section 2(f) to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at least two Trading Days prior to the applicable Filing Date (subject to the requirements set forth in Section 3(a)); provided, that the Company shall have furnished a copy of Selling Holder Questionnaire to such Holder and requested a completed Selling Holder Questionnaire from such Holder ten Trading Days prior to each applicable Filing Date.   3. Registration Procedures.   In connection with the Company’s registration obligations hereunder:   (a) Not less than four Trading Days prior to the filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall furnish to each Holder copies of the “Selling Stockholders” section of such document, the “Plan of Distribution” and any risk factor contained in such document that addresses specifically this transaction or the Selling Stockholders, as proposed to be filed, which documents will be subject to the review of such Holder.  The Company shall not file a Registration Statement, any Prospectus or any amendments or supplements thereto in which the “Selling Stockholder” section thereof differs from the disclosure received from a Holder in its Selling Holder Questionnaire (as amended or supplemented).  The Company shall not file a Registration Statement, any Prospectus or any amendments or supplements thereto in which it (i) characterizes any Holder as an underwriter, unless such characterization is consistent with written information provided by the Holder in the Selling Holder Questionnaire, (ii) excludes a particular Holder due to such Holder refusing to be named as an underwriter, or (iii) reduces the number of Registrable Securities being registered on behalf of a Holder except pursuant to, in the case of subsection (iii), the Commission Comments, without, in each case, such Holder’s express written authorization, unless such reduction is made pursuant to Section 2(b) hereof.  The Company shall also ensure that each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein) shall not contain any be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading.   (b) The Company shall (i) prepare and file with the Commission such amendments, including post-effective amendments, to each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for its Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statement(s) and the disposition of all Registrable Securities covered by each Registration Statement.       - 7 -     (c) The Company shall notify the Holders as promptly as reasonably possible (i) Registration Statement is proposed to be filed; and with respect to each effective; (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such such Registration Statement or the Prospectus, as the case may be, it will not   (d) The Company shall use its reasonable best efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Holders of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.   (e) The Company shall furnish to each Holder, without charge and at the option of the Company in electronic format, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits, as well as a copy of each Prospectus and each amendment or supplement thereto, to the extent requested by such Holder (including those previously furnished) promptly after the filing of such documents with the Commission.   (f) Prior to any public offering of Registrable Securities, the Company shall register or qualify such Registrable Securities for offer and sale under the securities or Blue Sky laws of all jurisdictions within the United States as any Holder may reasonably request, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statements; provided, however, in connection with any such registration or qualification, the Company shall not be required to (i) qualify to do business in any jurisdiction where the Company would not otherwise be required to qualify, (ii) subject itself to general taxation in any such jurisdiction, (iii) file a general consent to service of process in any jurisdiction, or (iv) make any change to the Company’s articles of incorporation or bylaws.       - 8 -     (g) The Company shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement(s), which certificates shall be free, to the extent permitted by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may request.   (h) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as reasonably possible, the Company shall prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact made, not misleading.   (i) The Company shall notify each Holder in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission to state a misleading (provided that in no event shall such notice contain any material, nonpublic information), and promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission.  The Company shall also promptly notify each Holder in writing when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective.   (j) If any Holder is required under applicable securities laws to be described in the Registration Statement as an underwriter, at the reasonable request of such Holder, the Company shall furnish to such Holder, on the date of the effectiveness of the Registration Statement and thereafter from time to time on such dates as a Holder may reasonably request: (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holders, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance reasonably acceptable to such counsel and as is customarily given in an underwritten public offering, addressed to the Holders.   (k) The Company shall hold in confidence and not make any disclosure of information concerning a Holder provided to the Company unless: (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other agreement.  The Company agrees that it shall, upon learning that disclosure of such information concerning an Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Holder and allow such Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.       - 9 -     (l) The Company shall use its reasonable best efforts to cause all of the Registrable Securities covered by a Registration Statement to be listed on each national securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange.  The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 3(l).   (m) If requested by a Holder, the Company shall as soon as practicable: (i) incorporate in a prospectus supplement or post-effective amendment such information as a Holder reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities amendment after being notified of the matters to be incorporated in such amendments to any Registration Statement if reasonably requested by a Holder holding any Registrable Securities.   (n) The Company shall use its reasonable best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.   4. Registration Expenses.  All fees and expenses incident to the performance of or compliance with this Agreement by the Company shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement.  The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, (B) with respect to filings with FINRA for compensation review pursuant to FINRA Rule 5110, and (C) in compliance with applicable state securities or Blue Sky laws), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by the holders of a majority of the Registrable Securities included in the Registration Statement), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement.  In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder.       - 10 -     5. Indemnification.   (a) Indemnification by the Company.  The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors, agents, investment and legal advisors, partners, members and employees of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, agents and employees of each such controlling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and reasonable attorneys' fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or form of prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that (1) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or such form of Prospectus or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto for this purpose) or (2) in the case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of an Advice or an amended or supplemented Prospectus, but only if and to the extent that following the receipt of the Advice or the amended or supplemented Prospectus the misstatement or omission giving rise to such Loss would have been corrected.  The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of which the Company is aware in connection with the transactions contemplated by this Agreement.   (b) Indemnification by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred, arising solely out of or based solely upon: (x) such Holder's failure to comply with the prospectus delivery requirements of the Securities Act or (y) any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or any form of prospectus, or in any amendment or supplement thereto, or arising solely out of or based solely upon any omission of a therein not misleading to the extent, but only to the extent that, (1) such untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such       - 11 -     Holder or such Holder's proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in the Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose), such Prospectus or such form of Prospectus or in any amendment or supplement thereto or (2) in the case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of an Advice or an amended or supplemented Prospectus, but only if and to the extent that following the receipt of the Advice or the amended or supplemented Prospectus the misstatement or omission giving rise to such Loss would have been corrected.  In no event shall the aggregate liability of any selling Holder under the Transaction Documents (as defined in the Purchase Agreement) be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.   (c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be determined by a court of competent jurisdiction that such failure shall have proximately and materially adversely prejudiced the Indemnifying Party.   An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless:  (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party).  The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld.  No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a 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.   All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party (regardless of whether it is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder; provided, that the Indemnifying Party may require such Indemnified Party to undertake to reimburse all such fees and expenses to the extent it is judicially determined that such Indemnified Party is not entitled to indemnification hereunder).       - 12 -     (d) Contribution.  If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party (by reason of public policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties' relative intent, action, statement or omission.  The amount paid or payable by a party as a forth in Section 5(c), any reasonable attorneys' or other reasonable fees or indemnification provided for in this Section was available to such party in   pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph.  Notwithstanding the provisions of this Section 5(d), (i) no Person involved in the sale of Registrable Securities which Person is guilty of Securities Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) no Holder shall be required to proceeds actually received by such Holder from the sale of the Registrable Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.   The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties.   6. Reports Under the Exchange Act.  With a view to making available to the Holders the benefits of Rule 144 or any other similar rule or regulation of the SEC that may at any time permit the Holders to sell Registrable Securities of the Company to the public without registration, the Company agrees, for so long as Registrable Securities are outstanding and held by the Holders, to:   (a) make and keep public information available, as those terms are understood, defined and required in Rule 144;   (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject to such requirements and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and       - 13 -     (c) furnish to each Holder so long as such Holder owns Registrable Securities, promptly upon request, such information as may be reasonably and customarily requested to permit the Holders to sell such securities pursuant to Rule 144 without registration.   7. Assignment of Registration Rights.  The rights under this Agreement shall be automatically assignable by the Investors to any permitted transferee of all or any portion of such Investor’s Registrable Securities if: (i) the Investor agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within five (5) Business Days after such assignment; (ii) the Company is, within five (5) Business Days after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the Securities Act or applicable state securities laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein; and (v) such transfer shall have been made in accordance with the applicable requirements of the Purchase Agreement.   8. Miscellaneous.   (a) Remedies.  In the event of a breach by the Company or by a Holder, of any of their obligations under this Agreement, each Holder or the Company, as the case specific performance of its rights under this Agreement.  The Company and each Holder agree that monetary damages would not provide adequate compensation for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.   (b) No Piggyback on Registrations.  Except for the shares identified on Annex C hereto, which shall be included in the Registration Statement (“Permissible Piggyback Shares”), neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) have the contractual right to include securities of the Company in a Registration Statement other than the Registrable Securities, and the Company shall not during the Effectiveness Period enter into any agreement providing any such right to any of its security holders.   (c) Compliance.  Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it in connection with sales of Registrable Securities pursuant to the Registration Statement.   (d) Discontinued Disposition.  Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.  The Company may provide appropriate stop transfer orders to enforce the provisions of this paragraph.       - 14 -     (e) Piggy-Back Registrations.  If at any time during the Effectiveness Period  there is not an effective Registration Statement covering all of the Registrable Securities and the Company shall determine to prepare and file with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities Act of any of its equity Securities Act) or their then equivalents relating to equity securities to be equity securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to each Holder written notice of such determination and, if within fifteen calendar days after receipt of such notice, registration statement all or any part of such Registrable Securities such holder requests to be registered, subject to customary underwriter cutbacks applicable to all holders of registration rights.   (f) Amendments and Waivers.  Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance Company and the Holders of no less than a majority in interest of the then outstanding Registrable Securities.  No such amendment shall be effective to the extent that it applies to less than all of the Holders.  No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.  Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of certain Holders and that does not directly or indirectly affect the rights of other Holders may be given by Holders of at least a majority of the Registrable Securities to which such waiver or consent relates; provided, further that no amendment or waiver to any provision of this Agreement relating to naming any Holder or requiring the naming of any Holder as an underwriter may be effected in any manner without such Holder’s prior written consent.  Section 2(a) may not be amended or waived except by written consent of each Holder affected by such amendment or waiver.   (g) Notices.  Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered if delivered in accordance with Section 6.3 of the Purchase Agreement.   (h) Successors and Assigns.  This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder.  The Company may not assign its rights or obligations hereunder without the prior written consent of each Holder.  Each Holder may assign their respective rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement.       - 15 -     (i) Execution and Counterparts.  This Agreement may be executed in any number of Agreement.  In the event that any signature is delivered by facsimile or email the same force and effect as if such facsimile or email signature were the original thereof.   (j) Governing Law.  All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and agrees that all Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement (whether brought against a party hereto or its respective Affiliates, employees or agents) will be commenced in the New York Courts.  Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any Proceeding, any claim that it is not personally subject to the jurisdiction of any New York Court, or that such Proceeding has been commenced in an improper or inconvenient forum.  Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any such Proceeding by mailing a copy thereof via in any way any right to serve process in any manner permitted by law.  Each applicable law, any and all right to trial by jury in any Proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.  If either party shall commence a Proceeding to enforce any provisions of this Agreement, then the prevailing party in such Proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Proceeding.   (k) Cumulative Remedies.  The remedies provided herein are cumulative and not exclusive of any remedies provided by law.   (l) Entire Agreement. This Agreement, the other Transaction Documents (as defined in the Purchase Agreement) and the instruments referenced herein and therein constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof.  There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein.  This Agreement, the other Transaction Documents and the instruments referenced herein and therein supersede all prior agreements and understandings among the parties hereto with respect to the subject matter hereof and thereof.   (m) Severability. If any term, provision, covenant or restriction of this their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.  It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.       - 16 -     (n) Headings.  The headings in this Agreement are for convenience of reference   (o) Independent Nature of Investors' Obligations and Rights.  The obligations of each Investor under this Agreement are several and not joint with the obligations of each other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other under this Agreement.  Nothing contained herein or in any Transaction Document, and no action taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in contemplated by this Agreement or any other Transaction Document.  Each Investor acknowledges that no other Investor will be acting as agent of such Investor in enforcing its rights under this Agreement.  Each Investor shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it shall not be necessary for any other Investor to be joined as an additional party in any Proceeding for such purpose.  The Company acknowledges that each of the Investors has been provided with the same Registration Rights Agreement for the purpose of closing a transaction with multiple Holders and not because it was required or requested to do so by any Investor.                       - 17 -       IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement       COMPANY:           SMSA PALESTINE ACQUISITION CORP.             By: /s/ Yang Yongjie       Name: Yang Yongjie        Title:   Chief Executive Officer                                           - 18 -               NAME OF INVESTOR           Date By: /s/        Name        Title                ADDRESS FOR NOTICE       Company:    Address:    Tel:    Fax:    Email:        Attention:        - 19 -     Annex A   Plan of Distribution   The Selling Stockholders and any of their pledgees, donees, transferees, their shares of Common Stock on any stock exchange, market or trading facility on which the shares are traded or quoted or in private transactions.  These sales may be at fixed or negotiated prices.  The Selling Stockholders may use any one or more of the following methods when selling shares:   ·   ordinary brokerage transactions and transactions in which the broker-dealer solicits Investors;   ·   the transaction;   ·   its account;   ·   an exchange distribution in accordance with the rules of the applicable exchange;   ·   privately negotiated transactions;   ·   through the writing of options on the shares;   ·   to cover short sales made after the date that this Registration Statement is declared effective by the Commission;   ·   number of such shares at a stipulated price per share; and   ·   a combination of any such methods of sale.   The Selling Stockholders may also sell shares under Rule 144 of the Securities this prospectus. The selling stockholders shall have the sole and absolute discretion not to accept any purchase offer or make any sale of shares if it deems the purchase price to be unsatisfactory at any particular time.   The Selling Stockholders or their respective pledgees, donees, transferees or other successors in interest, may also sell the shares directly to market makers acting as principals and/or broker-dealers acting as agents for themselves or their customers. Such broker-dealers may receive compensation in the form of discounts, concessions or commissions from the Selling Stockholders and/or the purchasers of shares for whom such broker-dealers may act as agents or to whom they sell as principal or both, which compensation as to a particular broker-dealer might be in excess of customary commissions. Market makers and block purchasers purchasing the shares will do so for their own account and at their own risk. It is possible that a selling stockholder will attempt to sell shares of common stock in block transactions to market makers or other purchasers at a price per share which may be below the then existing market price. We cannot assure that all or any of the shares offered in this prospectus will be issued to, or sold by, the Selling Stockholders. The Selling Stockholders and any brokers, dealers or agents, upon effecting the sale of any of the shares offered in this prospectus, may be deemed to be “underwriters” as that term is defined under the Securities Act, the Exchange Act and the rules and regulations of such acts. In such event, any commissions received by such them may be deemed to be underwriting commissions or discounts under the Securities Act.       - 20 -     We are required to pay all fees and expenses incident to the registration of the shares, including fees and disbursements of counsel to the Selling Stockholders, but excluding brokerage commissions or underwriter discounts.   The Selling Stockholders, alternatively, may sell all or any part of the shares offered in this prospectus through an underwriter.  The Selling Stockholders have not entered into any agreement with a prospective underwriter and there is no assurance that any such agreement will be entered into.   The Selling Stockholders may pledge their shares to their brokers under the margin provisions of customer agreements. If a Selling Stockholder defaults on a margin loan, the broker may, from time to time, offer and sell the pledged shares. The Selling Stockholders and any other persons participating in the sale or distribution of the shares will be subject to applicable provisions of the Exchange Act, and the rules and regulations under such act, including, without limitation, Regulation M. These provisions may restrict certain activities of, and limit the timing of purchases and sales of any of the shares by, the Selling Stockholders or any other such person. In the event that any of the Selling Stockholders are deemed an affiliated purchaser or distribution participant within the meaning of Regulation M, then the Selling Stockholders will not be permitted to engage in short sales of common stock. Furthermore, under Regulation M, persons engaged in a distribution of securities are prohibited from simultaneously engaging in market making and certain other activities with respect to such securities for a specified period of time prior to the commencement of such distributions, subject to specified exceptions or exemptions. In addition, if a short sale is deemed to be a stabilizing activity, then the Selling Stockholders will not be permitted to engage in a short sale of our common stock. All of these limitations may affect the marketability of the shares.   If a Selling Stockholder notifies us that it has a material arrangement with a broker-dealer for the resale of the common stock, then we would be required to amend the registration statement of which this prospectus is a part, and file a prospectus supplement to describe the agreements between the Selling Stockholder and the broker-dealer.       - 21 -     Annex B SMSA PALESTINE ACQUISITION CORP. Selling Stockholder Notice and Questionnaire   The undersigned beneficial owner of common stock (the “Common Stock”), of SMSA Palestine Acquisition Corp., a Nevada corporation (the “Company”), understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”) a Registration Statement for the registration and resale of the Registrable Securities, in accordance with the terms of the Registration Rights Agreement, dated as of August [●], 2010 (the “Registration Rights Agreement”), among the Company and the Investors named therein.  A copy of the Registration Rights Agreement is available from the Company upon request at the address set forth below.  All capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.   The undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:   QUESTIONNAIRE     1. Name.     (a) Full Legal Name of Selling Stockholder           (b) Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held:         (c) Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire):         2.  Address for Notices to Selling Stockholder:         Telephone:   Fax:   Contact Person:     3.  Beneficial Ownership of Registrable Securities:         - 22 -       Type and Principal Amount of Registrable Securities beneficially owned:                   4.  Broker-Dealer Status:     (a) Are you a broker-dealer?   Yes                         No        Note: If yes, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement.     (b) Are you an affiliate of a broker-dealer?   Yes                         No        (c) If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements Registrable Securities?   Yes                         No        Note: If no, the Commission’s staff has indicated that you should be identified as an     5.  Beneficial Ownership of Other Securities of the Company Owned by the Selling Stockholder.   Except as set forth below in this Item 5, the undersigned is not the beneficial or registered owner of any securities of the Company other than the Registrable Securities listed above in Item 3.     Type and Amount of Other Securities beneficially owned by the Selling Stockholder:                 - 23 -     6.  Relationships with the Company:   Except as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors or affiliates) during the past three years.     State any exceptions here:               7.  The Company has advised each Selling Stockholder that it is the view of the Commission that it may not use shares registered on the Registration Statement to cover short sales of Common Stock made prior to the date on which the Registration Statement is declared effective by the Commission, in accordance with 1997 Securities and Exchange Commission Manual of Publicly Available Telephone Interpretations Section A.65.  If a Selling Stockholder uses the prospectus for any sale of the Common Stock, it will be subject to the prospectus delivery requirements of the Securities Act.  The Selling Stockholders will be responsible to comply with the applicable provisions of the Securities Act and Exchange Act, and the rules and regulations thereunder promulgated, including, without limitation, Regulation M, as applicable to such Selling Stockholders in connection with resales of their respective shares under the Registration Statement.   The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof and prior to the Effective Date for the Registration Statement.   Certain legal consequences arise from being named as a Selling Stockholder in the Registration Statement and related prospectus.  Accordingly, the undersigned is advised to consult their own securities law counsel regarding the consequence of being named or not being named as a Selling Stockholder in the Registration Statement and the related prospectus.   By signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 6 and the inclusion of such information in the Registration Statement and the related prospectus.  The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related prospectus.  The undersigned hereby elects to include the Registrable Securities owned by it and listed above in Item 3 (unless otherwise specified in Item 3) in the Registration Statement.       - 24 -     IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by its duly authorized agent.     Dated:     Beneficial Owner:              PLEASE FAX OR EMAIL A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO: Sheppard, Mullin, Richter & Hampton LLP 41/F Raffles City Office Tower 268 Xizang Road Central, Huangpu Shanghai 200001, China [email protected] Sahghai Fax - (86 21) 2321 6001 US Fax: (858) 720-8900       - 25 -     Annex C   Schedule of Holders of Permissible Piggyback Shares   Name of Holders of Permissible Piggyback Shares Number of Permissible Piggyback Shares Contact Information New Fortress Group Limited 603,928   William Blair & Company, LLC 2,838   Halter Financial Securities, Inc. 190   WLT Brothers Holding, Inc. 851   James H. Groh 664   Nicholas B. Hirsch 187   HFG Investments, Limited 131,028           - 26 -  

Exhibit 99.1 FOR IMMEDIATE RELEASE (Atlanta, GA – September 18, 2009)HSW International, Inc., a developer and operator of Internet businesses focused on providing locally relevant, high quality information, today announced that on September 16, 2009, it received a notice from the Nasdaq Stock Market indicating that it no longer complies with the requirements of Nasdaq Marketplace Rule 5450(a)(1) for continued listing on the Nasdaq Global Market.The rule requires that shares of HSW International’s stock maintain a minimum bid price of $1.00 per share. HSW International has 180 calendar days, or until March 15, 2010, in which to regain compliance with the listing requirement.If HSW International does not regain compliance prior to the expiration of the 180-day grace period, Nasdaq will provide written notice that HSW International securities are subject to delisting.Alternatively, HSW International may be eligible for an additional 180-day grace period if it meets the initial listing standards, with the exception of bid price, for the Nasdaq Capital Market.To avail itself of this option, HSW International will need to submit an application to transfer its securities to the Nasdaq Capital Market. About HSW International, Inc. HSW International, Inc. (Nasdaq: HSWI) develops and operates Internet businesses focused on providing consumers in the world's emerging digital economies with locally relevant, high quality information. The Company's leading brands BoWenWang (bowenwang.com.cn) and ComoTudoFunciona (hsw.com.br) provide readers in China and Brazil with thousands of articles about how the world around them works, serving as destinations for credible, easy-to-understand reference information. HSW International is the exclusive licensee in China and Brazil for the publication of translated content from HowStuffWorks.com, a subsidiary of Discovery Communications. The Company is headquartered in Atlanta and incorporated in Delaware. Forward-Looking Statements "Safe Harbor" Statement under the Private Securities Litigation Reform Act of 1995: Statements in this press release that are not historical facts are "forward-looking statements" under the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.Such forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from those described in the forward-looking statements.The potential risks and uncertainties address a variety of subjects including, for example:the continued listing of HSW International’s securities on the Nasdaq Global Market; reliance on third parties such as World Book for content; challenges inherent in developing an online business in foreign countries, notably China and Brazil, including obtaining regulatory approvals and adjusting to changing political and economic policies; governmental laws and regulations, including unclear and changing laws and regulations related to the internet sector in foreign countries, especially China; general industry conditions and competition; general economic conditions, such as interest rate and currency exchange rate fluctuations; and restrictions on certain intellectual property under agreements with third parties.For a more detailed discussion of such risks and uncertainties, refer to HSW International’s reports filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934.These risks and uncertainties could cause actual results to differ materially from those expressed in or implied by the forward-looking statements, and therefore should be carefully considered.The forward-looking statements contained herein are made as of the date of this press release, and HSW International assumes no obligation to update any forward-looking statements after the date hereof, except as required by law.

Name: Commission Decision of 24 July 1978 authorizing the French Republic not to apply Community treatment to tableware and other articles of a kind commonly used for domestic or toilet purposes, of porcelain or china or of other kinds of pottery, falling within heading No 69.11 and subheadings 69.12 C and D of the Common Customs Tariff, originating in Japan and in free circulation in the other Member States Type: Decision_ENTSCHEID Subject Matter: nan Date Published: 1978-08-29 nan

Exhibit 23.1 Consent of Independent Registered Public Accounting Firm We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 17, 2010 relating to the financial statements, financial statement schedule, and the effectiveness of internal control over financial reporting, which appears in Carpenter Technology Corporation's Annual Report on Form 10-K for the year ended June 30, 2010. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Philadelphia, Pennsylvania April 29, 2011

Exhibit 10.1 CALDERA PHARMACEUTICALS, INC. EMPLOYMENT AGREEMENT Agreement made this 25th of October, 2006, between Caldera Pharmaceuticals, Inc., a Delaware corporation (hereinafter referred to as “Company") and Benjamin Warner, hereinafter referred to as “Employee.” In consideration of the mutual covenants and agreements hereinafter set forth, the Company and Employee agree as follows: 1. Term of Employment. The term of employee’s employment shall commence on October 25, 2006, and shall continue until terminated as provided for herein. (a) Duties & Responsibilities. Employee will report directly to the company Board of Directors. Employee will have the responsibilities and duties of Chief Executive as well as other duties on behalf of the company as assigned by the Board of Directors. 2. Compensation. (a) Base Salary. Employee shall be paid a base salary ("Base Salary") at an annual rate of Two Hundred Thousand Dollars ($200,000) payable in bi-weekly installments consistent with Company's payroll practices and subject to all applicable employment and withholding taxes. (b) Bonus. Employee shall also be entitled to a bonus determined at the sole discretion of Company’s Board of Directors. 3. Other Employment Benefits. (a) Business Expenses. Upon submission of itemized expense statements in the manner specified by the Company, Employee shall be entitled to reimbursement for business - expenses duly incurred by Employee in the performance of his duties under this Agreement. (b) Benefit Plans. Employee shall be entitled to participate in the Company's medical and dental plans, life and disability insurance plans, and retirement plans pursuant to their terms and conditions. Employee shall be entitled to any other benefit plan of the Company to its employees during the term of this Agreement. Nothing in this Agreement shall preclude the Company from terminating or amending any employee benefit plan or program from time to time. (c) Vacation. Employee shall be entitled to fifteen (15) days of vacation each year of full employment, exclusive of legal holidays, as long as the scheduling of Employee's vacation does not interfere with the Company's normal business operations. (d) Holidays. Employee shall be entitled to twelve (12) holidays designated by Company. 4. Confidentiality. Employee agrees to protect Employers confidential information as set out in the attached Employee Confidentiality Agreement. 5. Termination of Employment 1 (a) For Cause. Notwithstanding anything herein to the contrary, the Company may terminate Employee’s employment hereunder for cause for any one of the following reasons: (1) conviction of a felony, any act involving moral turpitude, or a misdemeanor where imprisonment is imposed, (2) commission of any act of theft, fraud, dishonesty. or falsification of any employment or Company records, (3) improper disclosure of the Company’s confidential or proprietary information, (4) any action by the Employee that has a detrimental on the Company's reputation or business, (5) Employee’s failure or inability to perform any reasonable assigned duties after written notice the Company of. and a reasonable opportunity to cure, such failure or inability, (6) any breach of this Agreement, which breach is not cured within ten (10) days following written notice of such breach, (7) a course of conduct amounting to gloss incompetence. (8) chronic and unexcused absenteeism, (9) unlawful appropriation of a corporate opportunity, or (10) misconduct in connection with the performance of any of Employee’s duties, including, without limitation, misappropriation of funds or property of the Company, securing or attempting to secure personally any profit in connection with any transaction entered into on behalf of the Company, misrepresentation to the Company or any violation of law or regulations on Company premises or to which the Company is subject. Upon termination of Employee's employment with the Company for cause, the Company shall be under no further obligation to Employee, except to pay all accrued but unpaid base salary and accrued vacation to the date of termination thereof. (b) Without Cause. The Company may terminate Employee's employment hereunder ax any time without cause by unanimous vote of the Board of Directors, provided, however, that Employee shall be entitled to severance pay in the amount of 3 months of Base Salary in addition to accrued but unpaid Base Salary and accrued vacation, less deductions required by law. 6. Intellectual property. All intellectual property (inventions, parents, copyrighted material, secrets, etc.) generated by Employee in the course of work for Company shall be owned solely by Company. 7. This agreement shall be construed in accordance with the statutes of the State of New Mexico, USA. Caldera Pharmaceuticals, Inc. Employee Print Name: Print Name: Benjamin Warner [Signed] [Signed] /Benjamin Warner/ Date Date 2

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): December 19, 2013 The Jones Group Inc. (Exact name of registrant as specified in its charter) Pennsylvania 1-10746 06-0935166 (State or other jurisdiction of incorporation) (Commission File Number) (IRS Employer Identification No.) 1411 Broadway New York, New York (Address of principal executive offices) (Zip Code) (212) 642-3860 (Registrant’s Telephone Number, Including Area Code) Not Applicable (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instructions A.2. below): ¨ Written communications pursuant to Rule425 under the Securities Act (17 CFR 230.425) x Soliciting material pursuant to Rule14a-12 under the Exchange Act (17 CFR 240.14a-12) ¨ Pre-commencement communications pursuant to Rule14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) ¨ Pre-commencement communications pursuant to Rule13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item8.01 Other Events. On December 19, 2013, The Jones Group Inc., a Pennsylvania corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Jasper Parent LLC (“Parent”), a Delaware limited liability company, and Jasper Merger Sub, Inc. (“Merger Sub”), a newly formed Pennsylvania corporation and a wholly owned subsidiary of Parent,providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent.At the closing of the Merger, each share of Company common stock issued and outstanding immediately prior to the closing of the Merger (other than shares owned by Parent, Merger Sub or any other direct or indirect wholly owned subsidiary of Parent and shares owned by the Company or any direct or indirect wholly owned subsidiary of the Company, in each case not held on behalf of third parties) will be converted into the right to receive an amount in cash equal to $15.00 per share, without interest.Parent and Merger Sub are beneficially owned by affiliates of Sycamore Partners, L.P. and Sycamore Partners A, L.P. In connection with the transactions contemplated by the Merger Agreement, the Company has agreed to suspend the payment of its regular quarterly dividend. The Merger Agreement was unanimously approved by the board of directors of the Company (the “Board”).A copy of the press release issued by the Company announcing the transaction is attached as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.The terms of the Merger Agreement, including the conditions thereto, will be described in a subsequent filing on Form 8-K. On December 19, 2013, the Company sent a letter to its customers and business partners, which is attached hereto as Exhibit 99.2 and is incorporated herein by reference. On December 19, 2013, the Company sent a letter to its associates, which is attached hereto as Exhibit 99.3 and is incorporated herein by reference. On December 19, 2013, the Company sent a list of Frequently Asked Questions to its associates, which is attached hereto as Exhibit 99.4 and is incorporated herein by reference. Cautionary Statement Regarding Forward-Looking Statements Statements about the expected timing, completion and effects of the proposed Merger, and all other statements made in this Current Report on Form 8-K that are not historical facts are forward-looking statements and are made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.In some cases, these forward-looking statements may be identified by the use of words such as “may”, “will”, “expect”, “plan”, “anticipate”, “believe”, or “project”, or the negative of those words or other comparable words.Any forward-looking statements included in this Current Report on Form 8-K are made as of the date hereof only, based on information available to the Company as of the date hereof, and subject to applicable law to the contrary, the Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.Such forward-looking statements are subject to a number of risks, assumptions and uncertainties that could cause the Company’s actual results to differ materially from those suggested by the projected results in such forward-looking statements.Such risks and uncertainties include, among others:any conditions imposed on the parties in connection with the consummation of the transactions described herein; approval of the Merger by the Company’s shareholders (or the failure to obtain such approval); the ability to obtain regulatory approvals of the Merger and the other transactions contemplated by the Merger Agreement on the proposed terms and schedule; the Company’s ability to maintain relationships with customers, employees or suppliers following the announcement of the Merger Agreement and the transactions contemplated thereby; the ability of third parties to fulfill their obligations relating to the proposed transactions, including providing financing under current financial market conditions; the ability of the parties to satisfy the conditions to closing of the proposed transactions; the risk that the Merger and the other transactions contemplated by the Merger Agreement may not be completed in the time frame expected by the parties or at all; and the risks that are described from time to time in the Company’s reports filed with the U.S. Securities and Exchange Commission (the “SEC”), including the Annual Report on Form 10-K for the fiscal year ended December 31, 2012, filed with the SEC on February 22, 2013, in other of the Company’s filings with the SEC from time to time, including Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, and on general industry and economic conditions. 2 The Company believes these forward-looking statements are reasonable; however, you should not place undue reliance on forward-looking statements, which are based on current expectations.Any or all of the Company’s forward-looking statements may turn out to be wrong.They can be affected by inaccurate assumptions or by known or unknown risks, uncertainties and other factors, many of which are beyond the Company’s control. Additional Information and Where to Find It This communicationmay be deemed to be solicitation material in respect of the proposed acquisition of the Company by Parent.In connection with the proposed Merger, the Company intends to file relevant materials with the SEC, including the Company’s proxy statement in preliminary and definitive form.BEFORE MAKING ANY VOTING DECISION, THE COMPANY’S SHAREHOLDERS ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING THE COMPANY’S DEFINITIVE PROXY STATEMENT, CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER.The Company’s shareholders will be able to obtain, without charge, a copy of the proxy statement (when available) and other relevant documents filed with the SEC from the SEC’s website at http://www.sec.gov.The Company’s shareholders will also be able to obtain, without charge, a copy of the proxy statement and other relevant documents (when available) by directing a request by mail or telephone toThe JonesGroup Inc. Investor Relations at 1411 Broadway, New York, NY 10018, telephone number (212) 703-9819, or from the Company’s website, www.jonesgroupinc.com. Certain Information Concerning Participants The Company and its directors and officers and other persons may be deemed to be participants in the solicitation of proxies from the Company’s shareholders with respect to the proposed Merger.Information about the Company’s directors and executive officers and their ownership of the Company’s common stock is set forth in the proxy statement for the Company’s 2013 Annual Meeting of Shareholders, which was filed with the SEC on May15, 2013.Shareholders may obtain additional information regarding the interests of the Company and its directors and executive officers in the proposed Merger, which may be different than those of the Company’s shareholders generally, by reading the proxy statement and other relevant documents regarding the proposed Merger, when filed with the SEC.Investors should read the proxy statement carefully when it becomes available before making any voting or investment decisions. 3 Item9.01 Financial Statements and Exhibits. (d) Exhibits.The following Exhibits are filed as part of this Report on Form 8-K: Joint Press Release, dated December 19, 2013, of The Jones Group Inc. and Sycamore Partners. Letter to Customers and Business Partners. Letter to Associates. List of Frequently Asked Questions to Associates. 4 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. THE JONES GROUP INC., Date: December 20, 2013 By: /s/Ira M. Dansky Name: Ira M. Dansky Title: Executive Vice President, General Counsel and Secretary 5 EXHIBIT INDEX ExhibitNumber Description Joint Press Release, dated December 19, 2013, of The Jones Group Inc. and Sycamore Partners. Letter to Customers and Business Partners. Letter to Associates. List of Frequently Asked Questions to Associates. 6

  Exhibit 10.3   SECURITY AGREEMENT   This SECURITY AGREEMENT, dated as of September 1, 2015 (as amended, restated or modified from time, this “Security Agreement”), is executed by, between and among by, between and among INERGETICS, INC., a corporation incorporated under the laws of the State of Delaware (the “Grantor”), and _________ (“_____”), _____ (“_____,” and together with _____, collectively, the “Contractors”) and _____ (“_____” and together with the Contractors, collectively, the “Secured Parties”).   WITNESSETH:   WHEREAS, the Contractors have made or will make loans, and/or advances (the “Contractor Loans”), to the Grantor to, among other items, enable the Grantor to have its products manufactured, packaged and shipped to customers pursuant to a Master Purchase Order Assignment Agreement dated as of September 1, 2015, by and between the Contractors and the Grantor (as amended, supplemented, renewed, modified and/or otherwise changed from time to time, the “P.O. Agreement,” and, together with all other related documents including, but not limited to, this Security Agreement, any U.C.C. 1 Financing Statements and/or other documents evidencing and/or perfecting liens created by this Security Agreement and other documents evidencing any such liens, used to establish a lien or security interest in the assets of the Grantor, all Distributor’s Notes, Exchange Notes, Prior Notes and all modifications, exhibits, amendments, supplements, annexes of related items, collectively, and including any and all instruments evidencing the Contractor Loans and all exhibits, schedules, annexes, supplements, modifications and/or amendments to any and/or all of such documents, all as amended, supplemented, modified and/or otherwise changed, from time to time, collectively, the “P.O. Transaction Documents”), which aggregate principal amount of Contractor Loans under the P.O. Agreement cannot at any time exceed $1,000,000 aggregate principal amount; and   WHEREAS, the Contractors have previously made $395,000 aggregate principal amount of loans to the Grantor (the “Prior Loans”) as set forth on Schedule I, which Prior Loans are evidenced by certain documents and/or instruments and all other related documents including (to the extent they exist), but not limited to, any security agreements securing any collateral for such Prior Loans and any U.C.C. 1 Financing Statements and/or other documents evidencing and/or perfecting liens created by the security agreement and other documents evidencing any such liens or used to establish a lien or security interest in the assets of the Grantor, (all such documents including, but not limited to, all exhibits, schedules, annexes, supplements and/or amendments to any of such documents, all as amended, supplemented, modified and/or otherwise changed, collectively, the “Prior Loan Documents”), which (i) Prior Loans with all accrued but unpaid interest, pursuant to the P.O. Agreement, and (ii) a 12% $52,500 aggregate principal amount Convertible Debenture; Issue Date June 2015; issued to _____, as amended, supplemented and/or modified from time to time, will be converted into Contractor Loans and be evidenced by “Exchange Notes” and in the future the Contactors may make other loans and/or advances to the Grantor outside of the P.O. Agreement; and   WHEREAS, _____previously made (and in the future may make additional) loans to the Grantor (the “Other Loans”) as set forth on Schedule II hereto, which Other Loans are (and in the future may be) evidenced by notes, debentures and/or other instruments (all such notes, debentures and/or instruments together with such other documents, agreements and other items related to the Other Loans including, but not limited to, this Security Agreement and any U.C.C. 1 Financing Statements and/or other documents evidencing liens created by the security agreement and other documents evidencing any such liens or used to establish a lien or security interest in the assets of the Grantor, and all collectively, the “Other Loan Documents”); and          WHEREAS, the Secured Parties, the Grantor and certain other debtholders of the Grantor (the “Subordinating Creditors”) have entered into a Subordination Agreement dated as of September 1, 2015 (the “Subordination Agreement”), pursuant to which such Subordinating Creditors agreed to, among other items, subordinate: (i) all of their respective debts and obligations in the Grantor to the Secured Parties to the extent provided therein; and (ii) each Subordinating Creditor’s security interests of any nature or kind to the Secured Parties’ property and assets to the Loans (as hereinafter defined) and to the Collateral (as defined below); and   WHEREAS, the Contactor Loans, Exchange Notes, Prior Loans, Distributor Notes, Other Loans, and all other loans, obligations, payments and/or advances of any nature or kind of Grantor to the Secured Parties including, but not limited to, under and/or pursuant to (a) the P.O. Agreement, (including, but not limited to, the Contractor Expenses, the Commitment Fee, and all Contractors Deal Fees), (b) this Security Agreement, (c) all other P.O. Transaction Documents, (d) all Other Loan Documents, (e) all Other Loans, (f) all Prior Loans and (g) all Prior Loan Documents (the items set forth in (a) - (g), are each a “Loan Document”, and collectively, the “Loan Documents”), whether now existing or hereafter arising, together with all accrued and unpaid interest thereon, all other fees and charges due, owing or payable by the Grantor to one or more of the Secured Parties together with all costs of collection with respect to any of the above (including, but not limited to, attorneys’ fees and court costs and expenses throughout all trial and appellate levels and all negotiations, mediations, arbitrations and bankruptcy proceedings), and any and all other obligations of the Grantor to the Secured Parties whether now existing or arising hereafter shall hereinafter collectively be referred to as the “Loans”; and   WHEREAS, in order to induce the Secured Parties to make the Loans and enter into the P.O. Agreement, and with full knowledge that the Secured Parties would not enter into the P.O. Agreement without this Security Agreement, the Grantor has agreed to execute and deliver this Security Agreement to the Secured Parties, for the benefit of the Secured Parties; and   NOW, THEREFORE, in consideration of the credit extended now and in the future by Secured Parties to the Grantor and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Grantor and Secured Parties hereby agree as follows:   Section 1          DEFINITIONS.   1.1      Defined Terms.  Capitalized terms used but not otherwise defined in this Security Agreement shall have the meanings ascribed to them in the P.O. Agreement.  For the purposes of this Security Agreement, the following capitalized words and phrases shall have the meanings set forth below.   “Affiliate” shall mean any Person which, directly or indirectly, owns or controls, on an aggregate basis, at least a five percent (5%) interest in any other Person, or which is controlled by or is under common control with any other Person.   “Capital Securities” shall mean, with respect to any Person, all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of such Person’s capital, whether now outstanding or issued or acquired after the date hereof, including common shares, preferred shares, membership interests in a limited liability company, limited or general partnership interests in a partnership or any other equivalent of such ownership interest.   “Collateral” shall have the meaning set forth in Section 2.1 hereof.    2       “Control” or “Controlling” shall mean the possession of the power to direct, or cause the direction of, the management and policies of a Person by contract, voting of securities, or otherwise.   “Event of Default” shall have the meaning as such term may be defined in any of   “Liens” shall mean a lien, mortgage, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction, clouds on title and/or encumbrances.   “GAAP” shall mean generally accepted accounting principles in the United States of America as in effect from time to time.   “Material Adverse Effect” shall mean a material adverse effect on (a) the business, assets, property, operations, or condition (financial or otherwise) of Grantor, (b) the validity or enforceability of this Agreement or any of the other Loan Documents or (c) the rights or remedies of the Secured Parties hereunder or thereunder.   “Obligations” shall mean, now existing or in the future: (i) all Loans, principal, advances and other financial accommodations (whether primary, contingent or otherwise), (ii) all interest accrued thereon (including interest which would be payable as post-petition in connection with any bankruptcy or similar proceeding, whether or not permitted as a claim thereunder), (iii) any fees due to Secured Parties under this Agreement or any other Loan Documents, (iv) any expenses incurred by the Secured Parties under this Agreement or the other Loan Documents, (v) any and all other liabilities and obligations of each of the Grantor to the Secured Parties, and (vi) the performance by the Grantor of all covenants, agreements and obligations of every nature and kind on the part of the Grantor to be performed under this Agreement and any other Loan Documents.   “Obligor” shall mean Grantor, or any other party liable with respect to the Obligations.   “Permitted Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation of law, such as materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business with respect to a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings, (iv) Liens resulting from this Security Agreement and the Other Security Agreement   limited liability partnership, corporation, trust, joint venture, joint stock company, association, unincorporated organization, government or agency or political subdivision thereof, or other entity.   “Taxes” shall mean any and all present and future taxes, duties, levies, imposts, deductions, assessments, charges or withholdings, and any and all liabilities (including interest and penalties and other additions to taxes) with respect to the foregoing.   “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect to the Lenders’ liens on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.    3       “Unmatured Event of Default” shall mean any event which, with the giving of notice, the passage of time or both, would constitute an Event of Default.   1.2        Other Terms Defined in UCC.  All other capitalized words and phrases used herein and not otherwise specifically defined herein, in the P.O. Agreement, or in the other Loan Documents shall have the respective meanings assigned to such terms in the UCC, to the extent the same are used or defined therein.   1.3        Other Interpretive Provisions.   (a)          The meanings of defined terms are equally applicable to the singular and plural forms of the defined terms.  Whenever the context so requires, the neuter gender includes the masculine and feminine, the single number includes the plural, and vice versa, and in particular the word “Grantor” shall be so construed.   (b)          Section and Schedule references are to this Security Agreement unless otherwise specified.  The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Security Agreement shall refer to this Security Agreement as a whole and not to any particular provision of this Security Agreement.   (c)          The term “including” is not limiting, and means “including, without limitation”.   (d)          In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”, and the word “through” means “to and including”.   (e)          Unless otherwise expressly provided herein, (i) references to agreements (including this Security Agreement and the other Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, supplements and other modifications thereto, but only to the extent such amendments, restatements, supplements and other modifications are not prohibited by the terms of any Loan Document, and (ii) references to any statute or regulation shall be construed as including all statutory and regulatory provisions amending, replacing, supplementing or interpreting such statute or regulation.   (f)          To the extent any of the provisions of the other Loan Documents are inconsistent with the terms of this Security Agreement, the provisions of this Security Agreement shall govern.   (g)         This Security Agreement and the other Loan Documents may use several different limitations, tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurements are cumulative and each shall be performed in accordance with its terms.   Section 2         SECURITY FOR THE OBLIGATIONS.   2.1        Security for Obligations.  As security for the payment and performance of the Obligations now existing or in the future, Grantor does hereby pledge, assign, transfer, deliver and grant to the Secured Parties a continuing and unconditional first priority security interest in and to any and all property of Grantor, of any kind or description, tangible or intangible, wheresoever located and whether now existing or hereafter arising or acquired, including, but not limited to, the following (all of which property for Grantor, along with the products and proceeds therefrom, are individually and collectively referred to as the “Collateral”):    4        (a)          all property of, or for the account of, Grantor now or hereafter coming into the possession, control or custody of, or in transit to, the Secured Parties or any agent or bailee for the Secured Parties or any parent, affiliate or subsidiary of the Secured Parties or any participant with the Secured Parties in the Obligations (whether for safekeeping, deposit, collection, custody, pledge, transmission or otherwise), including all cash, earnings, dividends, interest, or other rights in connection therewith and the products and proceeds therefrom, including the proceeds of insurance thereon; and   (b)          the additional property of Grantor, whether now existing or hereafter arising or acquired, and wherever now or hereafter located, together with all additions and accessions thereto, substitutions, betterments and replacements therefor, products and Proceeds therefrom, and all of Grantor's books and records and recorded data relating thereto (regardless of the medium of recording or storage), together with all of Grantor's right, title and interest in and to all computer software required to utilize, create, maintain and process any such records or data on electronic media, identified and set forth as follows:   (i)       All Accounts and all goods whose sale, lease or other disposition by Grantor has given rise to Accounts and have been returned to, or repossessed or stopped in transit by, Grantor, or rejected or refused by any person who is or who may become obligated under, with respect to, or on an Account (“Account Grantor”);   (ii)      All Inventory, including raw materials, work-in-process and finished goods;   (iii)     All goods (other than Inventory), including embedded software, Equipment, vehicles, furniture and Fixtures;   (iv)    All Software and computer programs;   (v)     All Securities, Investment Property, Financial Assets and Deposit Accounts;   (vi)    All Chattel Paper, Electronic Chattel Paper, Instruments, Documents, Letter of Credit Rights, all proceeds of letters of credit, Health-Care-Insurance Receivables, Supporting Obligations, notes secured by real estate, Commercial Tort Claims and General Intangibles, including Payment Intangibles;   (vii)   All real estate property owned by Grantor and the interest of Grantor in fixtures related to such real property; and   (viii)  All Proceeds (whether Cash Proceeds or Noncash Proceeds) of the foregoing property, including all insurance policies and proceeds of insurance payable by reason of loss or damage to the foregoing property, including unearned premiums, and of eminent domain or condemnation awards.   2.2      Possession and Transfer of Collateral.  Until an Event of Default has occurred and is continuing, Grantor shall be entitled to possession and use of the Collateral (other than Instruments or Documents (including Tangible Chattel Paper and Investment Property consisting of certificated securities) and other Collateral required to be delivered to the Secured Parties pursuant to this Section 2) .  The cancellation or surrender of any promissory note evidencing an Obligation, upon payment or otherwise, shall not affect the right of the Secured Parties to retain the Collateral for any other of the Obligations except upon payment in full of the Obligations.  Grantor shall not sell, assign (by operation of law or otherwise), license, lease or otherwise dispose of, or grant any option with respect to any of the Collateral, except as permitted pursuant to the P.O. Agreement.    5       2.3        Financing Statements.  Grantor authorizes the Secured Parties to prepare and file such financing statements, amendments and other documents and do such acts as the Secured Parties deem necessary in order to establish and maintain valid, attached and perfected, first priority security interests in the Collateral in favor of the Secured Parties, free and clear of all Liens and claims and rights of third parties whatsoever, except Permitted Liens.  Grantor hereby irrevocably authorizes the Secured Parties at any time, and from time to time, to file in any jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral is comprised of all assets of Grantor (or words of similar effect), regardless of whether any particular asset comprising a part of the Collateral falls within the scope of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed, and (b) contain any other information required by Section 5 of Article 9 of the UCC of the jurisdiction wherein such financing statement or amendment is filed regarding the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether Grantor is an organization, the type of organization, and (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of the real property to which the Collateral relates.  Grantor agrees to furnish any such information to the Secured Parties promptly upon request.  In addition, Grantor shall make appropriate entries on its books and records disclosing the security interests of the Secured Parties in the Collateral.  Grantor hereby agrees that a photogenic or other reproduction of this Security Agreement is sufficient for filing as a financing statement and Grantor authorizes the Secured Parties to file this Security Agreement as a financing statement in any jurisdiction.   2.4        Preservation of the Collateral.  The Secured Parties may, but are not required to, take such actions from time to time as the Secured Parties reasonably deems appropriate to maintain or protect the Collateral. The Secured Parties shall have exercised reasonable care in the custody and preservation of the Collateral if the Secured Parties take such action as Grantor shall reasonably request in writing which is not inconsistent with the Secured Parties’ status as a secured party, but the failure of the Secured Parties to comply with any such request shall not be deemed a failure to exercise reasonable care; provided, however , the Secured Parties’ responsibility for the safekeeping of the Collateral shall (i) be deemed reasonable if such Collateral is accorded treatment substantially equal to that which the Secured Parties accords its own property, and (ii) not extend to matters beyond the control of the Secured Parties, including acts of God, war, insurrection, riot or governmental actions.  In addition, any failure of the Secured Parties to preserve or protect any rights with respect to the Collateral against prior or third parties, or to do any act with respect to preservation of the Collateral, not so requested by Grantor, shall not be deemed a failure to exercise reasonable care in the custody or preservation of the Collateral.  Grantor shall have the sole responsibility for taking such action as may be necessary, from time to time, to preserve all rights of Grantor and the Secured Parties in the applicable Collateral against prior or third parties.  Without limiting the generality of the foregoing, where Collateral consists in whole or in part of Capital Securities, Grantor represents to, and covenants with, the Secured Parties that Grantor has made arrangements for keeping informed of changes or potential changes affecting the Capital Securities (including rights to convert or subscribe, payment of dividends, reorganization or other exchanges, tender offers and voting rights), and Grantor agrees that the Secured Parties shall have no responsibility or liability for informing Grantor of any such or other changes or potential changes or for taking any action or omitting to take any action with respect thereto.    6       2.5        Other Actions as to any and all Collateral.  Grantor further agrees to take any other action reasonably requested by the Secured Parties to ensure the attachment, perfection and first priority of, and the ability of the Secured Parties to enforce, the security interest of the Secured Parties in any and all of the Collateral including (a) causing the Secured Parties’ name to be noted as secured party on any certificate of title for a titled good if such notation is a condition to attachment, perfection or priority of, or ability of the Secured Parties to enforce, the security interest of the Secured Parties in such Collateral, (b) if within the control of the Grantor, complying with, and, if not within the control of the Grantor, using best efforts to comply with, any provision of any statute, regulation or treaty of the United States as to any material portion of the Collateral as soon as possible but not more than forty-five (45) days after such request if compliance with such provision is a Collateral, (c) using best efforts to obtain governmental and other third party consents and approvals, including without limitation any consent of any licensor, lessor or other Person with authority or control over or an interest in any material portion of the Collateral as soon as possible but not more than forty-five (45) days after such request, (d) using best efforts to obtain waivers from mortgagees and landlords in form and substance reasonably satisfactory to the Secured Parties which affect any material portion of the Collateral as soon as possible but not more than forty-five (45) days after such request, and (e) taking all actions required by the UCC in effect from time to time or by other law, as applicable in any relevant UCC jurisdiction, or by other law as applicable in any foreign jurisdiction.  Grantor further agrees to indemnify and hold the Secured Parties harmless against claims of any Persons not a party to this Security Agreement concerning disputes arising over the Collateral except to the extent resulting from the gross negligence or willful misconduct of the Secured Parties or its Affiliates.   2.6        Collateral in the Possession of a Warehouseman or Bailee.  If any material portion of the Collateral at any time is in the possession of a warehouseman or bailee, Grantor shall promptly notify the Secured Parties thereof, and, as soon as possible but not more than forty-five (45) days later, shall use best efforts to obtain a Collateral Access Agreement in form and substance reasonably satisfactory to the Secured Parties from such warehouseman or bailee.   2.7        Letter-of-Credit Rights.  If Grantor at any time is a beneficiary under a letter of credit now or hereafter issued in favor of Grantor, Grantor shall promptly notify the Secured Parties thereof and, at the request and option of the Secured Parties, Grantor shall, pursuant to an agreement in form and substance reasonably satisfactory to the Secured Parties, either (i) arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to the Secured Parties of the proceeds of any drawing under the letter of credit, or (ii) arrange for the Secured Parties to become the transferee beneficiary of the letter of credit, with the Secured Parties agreeing, in each case, that the proceeds of any drawing under the letter to credit are to be applied as provided in the P.O. Agreement.   2.8        Commercial Tort Claims.  If Grantor shall at any time hold or acquire a Commercial Tort Claim, Grantor shall promptly notify the Secured Parties in writing signed by Grantor of the details thereof and grant to the Secured Parties in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Security Agreement, in each case in form and substance reasonably satisfactory to the Secured Parties, and shall execute any amendments hereto deemed reasonably necessary by the Secured Parties to perfect the security interest of the Secured Parties in such Commercial Tort Claim.    7       2.9         Electronic Chattel Paper and Transferable Records.  If Grantor at any time holds or acquires an interest in any electronic chattel paper or any “transferable record”, as that term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce Act, or in Section 16 of the Uniform Electronic Transactions Act as in effect in any relevant jurisdiction, Grantor shall promptly notify the Secured Parties thereof and, at the request of the Secured Parties, shall take such action as the Secured Parties may reasonably request to vest in the Secured Parties control under Section 9-105 of the UCC of such electronic chattel paper or control under Section 201 of the federal Electronic Signatures in Global and National Commerce Act or, as the case may be, Section 16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such transferable record.  The Secured Parties agrees with Grantor that the Secured Parties will arrange, pursuant to procedures reasonably satisfactory to the Secured Parties and so long as such procedures will not result in the Secured Parties loss of control, for Grantor to make alterations to the electronic chattel paper or transferable record permitted under Section 9-105 of the UCC or, as the case may be, Section 201 of the federal Electronic Signatures in Global and National Commerce Act or Section 16 of the Uniform Electronic Transactions Act for a party in control to make without loss of control.   Section 3         REPRESENTATIONS AND WARRANTIES.   Grantor makes the following representations and warranties to the Secured Parties:   3.1        Grantor Organization and Name. Grantor is a corporation duly incorporated, existing and in good standing under the laws of the State of Delaware, with full and adequate power to carry on and conduct its business as presently conducted.  Grantor is duly licensed or qualified in all foreign jurisdictions wherein the nature of its activities requires such qualification or licensing except where the failure to be so licensed or qualified would not cause a Material Adverse Effect.  The exact legal name of Grantor is as set forth in the first paragraph of this Security Agreement.   3.2         Authorization.  Grantor has full right, power and authority to enter into this Security Agreement and to perform all of its duties and obligations under this Security Agreement.  The execution and delivery of this Security Agreement and the other Loan Documents to which Grantor is a party will not, nor will the observance or performance of any of the matters and things herein or therein set forth, violate or contravene any provision of law or of the articles of incorporation or by-laws   of Grantor.  All necessary and appropriate action has been taken on the part of Grantor to authorize the execution and delivery of this Security Agreement.   3.3         Validity and Binding Nature.  This Security Agreement is the legal, valid and binding obligation of Grantor, enforceable against Grantor in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors' rights generally and to general principles of equity.   3.4        Consent; Absence of Breach.  The execution, delivery and performance of this Security Agreement and any other documents or instruments to be executed and delivered by Grantor in connection herewith, do not and will not (a) require any consent, approval, authorization, or filings with, notice to or other act by or in respect of, any governmental authority or any other Person (other than filings or notices in connection with the Liens granted pursuant to his Security Agreement, or pursuant to federal or state securities laws or other than any consent or approval which has been obtained and is in full force and effect); (b) conflict with (i) any provision of law or any applicable regulation, order, writ, injunction or decree of any court or governmental authority except for such conflicts which would not result in a Material Adverse Effect, (ii) the articles of incorporation, bylaws or other organic document of Grantor, or (iii) any material agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon Grantor or any of its properties or assets except for such conflicts which would not result in a Material Adverse Effect; or (c) require, or result in, the creation or imposition of any Lien on any asset of Grantor, other than Liens in favor of the Secured Parties created pursuant to this Security Agreement and Permitted Liens.    8       3.5        Ownership of Collateral; Liens.  Grantor is the sole owner of all of the Collateral, free and clear of all Liens, charges and claims (including infringement claims with respect to patents, trademarks, service marks, copyrights and the like), other than Permitted Liens.   3.6        Adverse Circumstances.  No condition, circumstance, event, agreement, document, instrument, restriction, litigation or proceeding (or, to Grantor's knowledge, threatened litigation or proceeding or basis therefor) exists which (a) would have a Material Adverse Effect upon Grantor, or (b) would constitute an Event of Default or an Unmatured Event of Default.   3.7         Security Interest.  This Security Agreement creates a valid security interest in favor of the Secured Parties in the Collateral and, when properly perfected by filing in the appropriate jurisdictions, or by possession or Control of such Collateral by the Secured Parties or delivery of such Collateral to the Secured Parties, shall constitute a valid, perfected, first-priority security interest in such Collateral.   3.8         Place of Business.  The principal place of business and books and records of Grantor and the location of all Collateral, is as set forth on Schedule 3.8 attached hereto and made a part hereof, and Grantor shall promptly notify the Secured Parties of any change in such locations.  Grantor will not remove or permit the Collateral to be removed from such locations without the prior written consent of the Secured Parties, except as permitted pursuant to the P.O. Agreement.   3.9        Complete Information.  This Security Agreement and all financial statements, schedules, certificates, confirmations, agreements, contracts, and other materials and information heretofore or contemporaneously herewith furnished in writing by Grantor to the Secured Parties for purposes of, or in connection with, this Security Agreement and the transactions contemplated hereby is, and all written information hereafter furnished by or on behalf of Grantor to the Secured Parties pursuant hereto or in connection herewith will be, true and accurate in every material respect on the date as of which such information is dated or certified, and none of such information is or will be incomplete by omitting to state any material fact necessary to make such information not misleading in light of the circumstances under which made (it being recognized by the Secured Parties that any projections and forecasts provided by Grantor are based on good faith estimates and assumptions believed by Grantor to be reasonable as of the date of the applicable projections or assumptions and that actual results during the period or periods covered by any such projections and forecasts may differ from projected or forecasted results).   Section 4         REMEDIES.   Upon the occurrence and during the continuation of any Event of Default, the Secured Parties shall have all rights, powers and remedies set forth in this Security Agreement or the other Loan Documents or in any other written agreement or instrument relating to any of the Obligations or any security therefor, as a secured party under the UCC or as otherwise provided at law or in equity. Without limiting the generality of the foregoing, the Secured Parties may, at its option upon the occurrence and during the continuation of any Event of Default, declare its commitments to Grantor to be terminated and all Obligations to be immediately due and payable, or, if provided in the Loan Documents, all commitments of the Secured Parties to Grantor shall immediately terminate and all Obligations shall be automatically due and payable, all without demand, notice or further action of any kind required on the part of the Secured Parties, except as required by the Loan Documents.  Grantor hereby waives any and all presentment, demand, notice of dishonor, protest, and all other notices and demands, except as required by the Loan Documents, in connection with the enforcement of the Secured Parties’ rights under the Loan Documents, and hereby consents to, and waives notice of release, with or without consideration, of any Collateral, notwithstanding anything contained herein or in the Loan Documents to the contrary.  In addition to the foregoing upon the occurrence and during the continuation of an Event of Default:    9      4.1        Possession and Assembly of Collateral.  The Secured Parties may, without notice, demand or initiate legal process of any kind, take possession of any or all of the Collateral (in addition to Collateral of which the Secured Parties already have possession), wherever it may be found, and for that purpose may pursue the same wherever it may be found, and may at any time enter into any of Grantor's premises where any of the Collateral may be or is supposed to be, and search for, take possession of, remove, keep and store any of the Collateral until the same shall be sold or otherwise disposed of and the Secured Parties shall have the right to store and conduct a sale of the same in any of Grantor's premises without cost to the Secured Parties.  At the Secured Parties’ request, Grantor will, at Grantor’s sole expense, assemble the Collateral and make it available to the Secured Parties at a place or places to be designated by the Secured Parties which is reasonably convenient to the Secured Parties and Grantor.   4.2        Sale of Collateral.  The Secured Parties may sell any or all of the Collateral at public or private sale, upon such terms and conditions as the Secured Parties may deem proper, and the Secured Parties may purchase any or all of the Collateral at any such sale.  Grantor acknowledges that the Secured Parties may be unable to effect a public sale of all or any portion of the Collateral because of certain legal and/or practical restrictions and provisions which may be applicable to the Collateral and, therefore, may be compelled to resort to one or more private sales to a restricted group of offerees and purchasers.  Grantor consents to any such private sale so made even though at places and upon terms less favorable than if the Collateral were sold at public sale.  The Secured Parties shall have no obligation to clean-up or otherwise prepare the Collateral for sale.  The Secured Parties may apply the net proceeds, after deducting all costs, expenses, attorneys' and paralegals' fees incurred or paid at any time in the collection, protection and sale of the Collateral and the Obligations, to the payment of the Obligations, returning the excess proceeds, if any, to Grantor. Any notification of intended disposition of the Collateral required by law shall be conclusively deemed reasonably and properly given if given by the Secured Parties at least ten (10) calendar days before the date of such disposition.  Grantor hereby confirms, approves and ratifies all acts and deeds of the Secured Parties relating to the foregoing, and each part thereof, and expressly waives any and all claims of any nature, kind or description which it has or may hereafter have against the Secured Parties or its representatives, by reason of taking, selling or collecting any portion of the Collateral other than in the event of any intentional misconduct or gross negligence.  Grantor consents to releases of the Collateral at any time (including prior to default) and to sales of the Collateral in groups, parcels or portions, or as an entirety, as the Secured Parties shall deem appropriate.  Grantor expressly absolves the Secured Parties from any loss or decline in market value of any Collateral by reason of delay in the enforcement or assertion or non-enforcement of any rights or remedies under this Security Agreement.    10       4.3         Standards for Exercising Remedies. To the extent that applicable law imposes duties on the Secured Parties to exercise remedies in a commercially reasonable manner, Grantor acknowledges and agrees that it is not commercially unreasonable for the Secured Parties (a) to incur expenses deemed necessary by the Secured Parties to prepare Collateral for disposition or otherwise to complete raw material or work-in-process into finished goods or other finished products for disposition, (b) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (c) to fail to exercise collection remedies against Account Grantors or other Persons obligated on Collateral or to remove liens or encumbrances on or any adverse claims against Collateral, (d) to exercise collection remedies against Account Grantors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (e) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact other Persons, whether or not in the same business as Grantor, for expressions of interest in acquiring all or any portion of the Collateral, (g) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the collateral is of a specialized nature, (h) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to disclaim disposition warranties, including any warranties of title, (k) to purchase insurance or credit enhancements to insure the Secured Parties against risks of loss, collection or disposition of Collateral or to provide to the Secured Parties a guaranteed return from the collection or disposition of Collateral, or (l) to the extent deemed appropriate by the Secured Parties, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Parties in the collection or disposition of any of the Collateral.  Grantor acknowledges that the purpose of this section is to provide non-exhaustive indications of what actions or omissions by the Secured Parties would not be commercially unreasonable in the Secured Parties’ exercise of remedies against the Collateral and that other actions or omissions by the Secured Parties shall not be deemed commercially unreasonable solely on account of not being indicated in this Section.  Without limitation upon the foregoing, nothing contained in this Section shall be construed to grant any rights to Grantor or to impose any duties on the Secured Parties that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section.   4.4        UCC and Offset Rights.  The Secured Parties may exercise, from time to time, any and all rights and remedies available to it under the UCC or under any other applicable law in addition to, and not in lieu of, any rights and remedies expressly granted in this Security Agreement or in any other agreements between any Obligor and the Secured Parties, and may, without demand or notice of any kind, appropriate and apply toward the payment of such of the Obligations, whether matured or unmatured, including costs of collection and attorneys' and paralegals' fees and costs, and in such order of application as the Secured Parties may, from time to time, elect, any indebtedness of the Secured Parties to any Obligor, however created or arising, including balances, credits, deposits, accounts or moneys of such Obligor in the possession, control or custody of, or in transit to the Secured Parties.  Grantor, on behalf of itself and any Obligor, hereby waives the benefit of any law that would otherwise restrict or limit the Secured Parties in the exercise of its right, which is hereby acknowledged, to appropriate at any time hereafter any such indebtedness owing from the Secured Parties to any Obligor.   4.5        Additional Remedies.  Upon the occurrence and during the continuation of an Event of Default, the Secured Parties shall have the right and power to:   (a)          instruct Grantor, at its own expense, to notify any parties obligated on any of the Collateral, including any Account Grantors, to make payment directly to the Secured Parties of any amounts due or to become due thereunder, or the Secured Parties may directly notify such obligors of the security interest of the Secured Parties, and/or of the assignment to the Secured Parties of the Collateral and direct such obligors to make payment to the Secured Parties of any amounts due or to become due with respect thereto, and thereafter, collect any such amounts due on the Collateral directly from such Persons obligated thereon;    11       (b)          enforce collection of any of the Collateral, including any Accounts, by suit or otherwise, or make any compromise or settlement with respect to any of the Collateral, or surrender, release or exchange all or any part thereof, or compromise, extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder;   (c)          take possession or control of any proceeds and products of any of the Collateral, including the proceeds of insurance thereon;   (d)          extend, renew or modify for one or more periods (whether or not longer than the original period) the Obligations or any obligation of any nature of any other obligor with respect to the Obligations;   (e)          grant releases, compromises or indulgences with respect to the Obligations, any extension or renewal of any of the Obligations, any security therefor, or to any other obligor with respect to the Obligations;   (f)           transfer the whole or any part of Capital Securities which may constitute Collateral into the name of the Secured Parties or the Secured Parties’ nominee without disclosing, if the Secured Parties so desires, that such Capital Securities so transferred are subject to the security interest of the Secured Parties, and any corporation, association, or any of the managers or trustees of any trust issuing any of such Capital Securities, or any transfer agent, shall not be bound to inquire, in the event that the Secured Parties or such nominee makes any further transfer of such Capital Securities, or any portion thereof, as to whether the Secured Parties or such nominee has the right to make such further transfer, and shall not be liable for transferring the same;   (g)         vote the Collateral;   (h)          make an election with respect to the Collateral under Section 1111 of the Bankruptcy Code or take action under Section 364 or any other section of Bankruptcy Code; provided , however , that any such action of the Secured Parties as set forth herein shall not, in any manner whatsoever, impair or affect the liability of Grantor hereunder, nor prejudice, waive, nor be construed to impair, affect, prejudice or waive the Secured Parties’ rights and remedies at law, in equity or by statute, nor release, discharge, nor be construed to release or discharge, Grantor, any guarantor or other Person liable to the Secured Parties for the Obligations; and   (i)           at any time, and from time to time, accept additions to, releases, reductions, exchanges or substitution of the Collateral, without in any way altering, impairing, diminishing or affecting the provisions of this Security Agreement, the Loan Documents, or any of the other Obligations, or the Secured Parties’ rights hereunder, under the Obligations.   Grantor hereby ratifies and confirms whatever the Secured Parties may do with respect to the Collateral and agrees that the Secured Parties shall not be liable for any error of judgment or mistakes of fact or law with respect to actions taken in connection with the Collateral other than as a result of intentional misconduct or gross negligence.    12       4.6        Attorney-in-Fact.  Grantor hereby irrevocably makes, constitutes and appoints the Secured Parties (and any officer of the Secured Parties or any Person designated by the Secured Parties for that purpose) as Grantor's true and lawful proxy and attorney-in-fact (and agent-in-fact) in Grantor's name, place and stead, with full power of substitution, to (i) take such actions as are permitted in this Security Agreement, (ii) execute such financing statements and other documents and to do such other acts as the Secured Parties may require to perfect and preserve the Secured Parties’ security interest in, and to enforce such interests in the Collateral, and (iii) upon the occurrence of an Event of Default, carry out any remedy provided for in this Security Agreement, including endorsing Grantor's name to checks, drafts, instruments and other items of payment, and proceeds of the Collateral, executing change of address forms with the postmaster of the United States Post Office serving the address of Grantor, changing the address of Grantor to that of the Secured Parties, opening all envelopes addressed to Grantor and applying any payments contained therein to the Obligations.  Grantor hereby acknowledges that the constitution and appointment of such proxy and attorney-in-fact are coupled with an interest and are irrevocable.  Grantor hereby ratifies and confirms all that such attorney-in-fact may do or cause to be done by virtue of any provision of this Security Agreement.   4.7        No Marshaling.  The Secured Parties shall not be required to marshal any present or future collateral security (including this Security Agreement and the Collateral) for, or other assurances of payment of, the Obligations or any of them or to resort to such collateral security or other assurances of payment in any particular order.  To the extent that it lawfully may, Grantor hereby agrees that it will not invoke any law relating to the marshaling of collateral which might cause delay in or impede the enforcement of the Secured Parties’ rights under this Security Agreement or under any other instrument creating or evidencing any of the Obligations or under which any of the Obligations is outstanding or by which any of the Obligations is secured or payment thereof is otherwise assured, and, to the extent that it lawfully may, Grantor hereby irrevocably waives the benefits of all such laws.   4.8        No Waiver.  No Event of Default shall be waived by the Secured Parties except in writing.  No failure or delay on the part of the Secured Parties in exercising any right, power or remedy hereunder shall operate as a waiver of the exercise of the same or any other right at any other time; nor shall any single or partial exercise of any such right, power or remedy preclude or remedy hereunder.  There shall be no obligation on the part of the Secured Parties to exercise any remedy available to the Secured Parties in any order.  The remedies provided for herein are cumulative and not exclusive of any remedies provided at law or in equity.  Grantor agrees that in the event that Grantor fails to perform, observe or discharge any of its Obligations or liabilities under this Security Agreement or any other agreements with the Secured Parties, no remedy of law will provide adequate relief to the Secured Parties, and further agrees that the Secured Parties shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.   4.9        Application of Proceeds.  The Secured Parties will within three (3) Business Days after receipt of cash or solvent credits from collection of items of payment, proceeds of Collateral or any other source, apply the whole or any part thereof against the Obligations secured hereby.  The Secured Parties shall further have the exclusive right to determine how, when and what application of such payments and such credits shall be made on the Obligations, and such determination shall be conclusive upon Grantor.  Any proceeds of any disposition by the Secured Parties of all or any part of the Collateral may be first applied by the Secured Parties to the payment of expenses incurred by the Secured Parties in connection with the Collateral, including reasonable attorneys’ fees and legal expenses and costs as provided for in Section 5.13 hereof.    13       Section 5         MISCELLANEOUS.   5.1         Entire Agreement.  This Security Agreement and the other Loan Documents (i) are valid, binding and enforceable against Grantor and the Secured Parties in accordance with their respective provisions and no conditions exist as to their legal effectiveness; (ii) constitute the entire agreement between the parties with respect to the subject matter hereof and thereof; and (iii) are the final expression of the intentions of Grantor and the Secured Parties.  No promises, either expressed or implied, exist between Grantor and the Secured Parties, unless contained herein or therein.  This Security Agreement, together with the other Loan Documents, supersedes all negotiations, representations, warranties, commitments, term sheets, discussions, negotiations, offers or contracts (of any kind or nature, whether oral or written) prior to or contemporaneous with the execution hereof with respect to any matter, directly or indirectly related to the terms of this Security Agreement and the other Loan Documents.  This Security Agreement and the other Loan Documents are the result of negotiations between the Secured Parties and Grantor and have been reviewed (or have had the opportunity to be reviewed) by counsel to all such parties, and are the products of all parties.  Accordingly, this Security Agreement and the other Loan Documents shall not be construed more strictly against the Grantor merely because of the Grantor’s involvement in their preparation.   5.2         Notices.  Any notices, consents, waivers, or other communications required or permitted to be given under the terms of this Security Agreement must be in writing and in each case properly addressed to the party to receive the same in accordance with the information below, and will be deemed to have been delivered: (i) if mailed by certified mail, return receipt requested, postage prepaid and properly addressed to the address below, then three (3) business days after deposit of same in a regularly maintained U.S. Mail receptacle; or (ii) if mailed by Federal Express, UPS or other nationally recognized overnight courier service, next business morning delivery, then one (1) business day after deposit of same in a regularly maintained receptacle of such overnight courier; or (iii) if hand delivered, then upon hand delivery thereof to the address indicated on or prior to 5:00 p.m., EST, on a Business Day.  Any notice hand delivered after 5:00 p.m., EST, shall be deemed delivered on the following Business Day.  Notwithstanding the foregoing, notice, consents, waivers or other communications referred to in this Security Agreement may be sent by e-mail, or other method of delivery, but shall be deemed to have been delivered only when the sending party has confirmed (by reply e-mail or some other form of written confirmation) that the notice has been received by the other party.  The addresses and email adresses for such communications shall be as set forth below, unless such address or information is changed by a notice conforming to the requirements hereof.  No notice to or demand on the Grantor in any case shall entitle the Grantor to any other or further notice or demand in similar or other circumstances:   If to the Grantor: Inergetics, Inc.   550 Broad Street, Suite 1212   Newark, NJ 07102   Attn: Michael James   E-Mail: ______     With a copy to (which shall ______ not constitute notice) ______     If to the Secured Parties: _____   _____   _____    14       5.3        Amendments; Waivers.  No delay on the part of the Secured Parties in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by the Secured Parties of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy.  No amendment, modification or waiver of, or consent with respect to, any provision of this Security Agreement or the other Loan Documents shall in any event be effective unless the same shall be in writing and acknowledged by the Secured Parties, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.   5.4        WAIVER OF DEFENSES.  GRANTOR WAIVES EVERY PRESENT AND FUTURE DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH GRANTOR MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY SECURED PARTY IN ENFORCING THIS SECURITY AGREEMENT.  PROVIDED SECURED PARTY ACTS IN GOOD FAITH, GRANTOR RATIFIES AND CONFIRMS WHATEVER SECURED PARTY MAY DO PURSUANT TO THE TERMS OF THIS SECURITY AGREEMENT.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR SECURED PARTY GRANTING ANY FINANCIAL ACCOMMODATION TO GRANTOR.   5.5        MANDATORY FORUM SELECTION.  ANY DISPUTE ARISING UNDER, RELATING TO, OR IN CONNECTION WITH THE AGREEMENT OR RELATED TO ANY MATTER WHICH IS THE SUBJECT OF OR INCIDENTAL TO THE AGREEMENT (WHETHER OR NOT SUCH CLAIM IS BASED UPON BREACH OF CONTRACT OR TORT) SHALL BE SUBJECT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, NEW YORK.  THIS PROVISION IS INTENDED TO BE A “MANDATORY” FORUM SELECTION CLAUSE AND GOVERNED BY AND INTERPRETED CONSISTENT WITH NEW YORK LAW.   5.6        WAIVER OF JURY TRIAL.  GRANTOR AND SECURED PARTY, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS SECURITY AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT, ANY OF THE OTHER OBLIGATIONS, THE COLLATERAL, OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, OR ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH SECURED PARTY AND GRANTOR ARE ADVERSE PARTIES, AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR SECURED PARTY GRANTING ANY FINANCIAL ACCOMMODATION TO GRANTOR.   5.7         Assignability.  The Secured Parties, prior to the occurrence of an Event of Default and with the consent of Grantor, which consent will not be unreasonably withheld, and after the occurrence and during the continuation of an Event of Default without consent from or notice to anyone, may at any time assign the Secured Parties’ rights in this Security Agreement, the other Loan Documents, the Obligations, or any part thereof and transfer the Secured Parties’ rights in any or all of the Collateral, and the Secured Parties thereafter shall be relieved from all liability with respect to such Collateral.  This Security Agreement shall be binding upon the Secured Parties and Grantor and its respective legal representatives and successors.  All references herein to Grantor shall be deemed to include any successors, whether immediate or remote.  In the case of a joint venture or partnership, the term “Grantor” shall be deemed to include all joint venturers or partners thereof, who shall be jointly and severally liable hereunder.    15       5.8         Binding Effect.  This Security Agreement shall become effective upon execution by Grantor and the Secured Parties.   5.9         Governing Law.  Except in the case of the Mandatory Forum Selection clause set forth in Section 5.5 hereof,  this Security Agreement shall be delivered and accepted in and shall be deemed to be a contract made under and governed by the internal laws of the State of New York, without regard to conflict of laws principles.   5.10       Enforceability.  Wherever possible, each provision of this Security Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Security Agreement shall be prohibited by, unenforceable or invalid under any jurisdiction, such provision shall as to such jurisdiction, be severable and be ineffective to the extent of such prohibition or invalidity, without invalidating the remaining provisions of this Security Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.   5.11       Time of Essence.  Time is of the essence in making payments of all amounts due the Secured Parties under the Loan Documents and in the performance and observance by Grantor of each covenant, agreement, provision and term of this Security Agreement and the other Loan Documents.   5.12       Counterparts; Email Signatures.  This Security Agreement may be separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Security Agreement.  Receipt of an executed signature page to this Security Agreement by email or other electronic transmission shall constitute effective delivery thereof.  Electronic records of executed Loan Documents maintained by the Secured Parties shall be deemed to be originals thereof.   5.13       Costs, Fees and Expenses.  Grantor shall pay or reimburse the Secured Parties for all reasonable costs, fees and expenses incurred by the Secured Parties or for which the Secured Parties become obligated in connection with the enforcement of this Security Agreement, including search fees, costs and expenses and attorneys' fees, costs and time charges of counsel to the Secured Parties and all taxes payable in connection with this Security Agreement.  In furtherance of the foregoing, Grantor shall pay any and all stamp and other taxes, UCC search fees, filing fees and other costs and expenses in connection with the execution and delivery of this Security Agreement and the other Loan Documents to be delivered hereunder, and agrees to save and hold the Secured Parties harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such costs and expenses.  That portion of the Obligations consisting of costs, expenses or advances to be reimbursed by Grantor to the Secured Parties pursuant to this Security Agreement or the other Loan Documents which are not paid on or prior to the date hereof shall be payable by Grantor to the Secured Parties on demand.  If at any time or times hereafter the Secured Parties: (a) employs counsel for advice or other representation (i) with respect to this Security Agreement or the other Loan Documents, (ii) to represent the Secured Parties in any litigation, contest, dispute, suit or proceeding or to commence, defend, or intervene or to take any other action in or with respect to any litigation, contest, dispute, suit, or proceeding (whether instituted by the Secured Parties, Grantor, or any other Person) in any way or respect relating to this Security Agreement, or (iii) to enforce any rights of the Secured Parties against Grantor or any other Person under of this Security Agreement; (b) takes any action to protect, collect, sell, liquidate, or otherwise dispose of any of the Collateral; and/or (c) attempts to or enforces any of the Secured Parties’ rights or remedies under this Security Agreement, the costs and expenses incurred by the Secured Parties in any manner or way with respect to the foregoing, shall be part of the Obligations, payable by Grantor to the Secured Parties on demand.    16       5.14       Termination.  This Security Agreement and the Liens and security interests granted hereunder shall not terminate until the termination of the Loan Documents and the commitments to make Loans thereunder and the full and complete performance and satisfaction and payment in full of all the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted).  Upon termination of this Security Agreement, the Secured Parties shall also deliver to Grantor (at the sole expense of Grantor) such UCC termination statements and such other documentation, without recourse, warranty or representation whatsoever, as shall be reasonably requested by Grantor to effect the termination and release of the Liens and security interests in favor of the Secured Parties affecting the Collateral.   5.15       Reinstatement.  This Security Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against Grantor for liquidation or reorganization, should Grantor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of Grantor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made.  In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.   [-Remainder of Page Deliberately Left Blank-]     17      IN WITNESS WHEREOF, Grantor and the Secured Parties have executed this Security       GRANTOR:       INERGETICS, INC.       By:        Name:     Title:       SECURED PARTIES:         _____         By:       Name:     Title:         _____         By:       Name:     Title:         _____         By:       Name:     Title:    18   

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 Form 10-Q x QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 2011 ¨ TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE EXCHANGE ACT For the transition period from to Commission file number 333-151252 TouchIT Technologies, Inc. (Exact Name of Registrant as Specified in Its Charter) Nevada 26-2477977 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) Istanbul Trakya Serbest Bölgesi Atatürk Bulvari Ali Riza Efendicd., A4 Blok Çatalca, Istanbul Turkey (Address of Principal Executive Offices) (Zip Code) 00 90 (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. YesxNo¨ Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ¨ No¨ Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, 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): Larger accelerated filer¨ Accelerated filer ¨ Non-accelerated filer¨ (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 ¨ No x State the number of shares outstanding of each of the issuer's classes of common equity, as of the latest practicable date: 64,549,419 shares of common stock outstanding as ofMay 16, 2011. TOUCHIT TECHNOLOGIES, INC. FORM 10-Q FOR THE QUARTERLY PERIOD ENDED MARCH 31, 2011 INDEX Page PART I -FINANCIAL INFORMATION Item 1. Financial Statements. 3 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations. 50 Item 3. Quantitative and Qualitative Disclosures About Market Risk. 59 Item 4. Controls and Procedures. 59 PART II -OTHER INFORMATION Item 1. Legal Proceedings. 60 Item 6. Exhibits. 60 Signature 61 EXPLANATORY NOTE TouchIT Technologies, Inc. (the “Company”) was incorporated in the State of Nevada as “Hotel Management Systems, Inc.”On May 7, 2010, the Company entered into a share exchange agreement, with TouchIT Technologies Koll Sti (“TouchIT Tech KS”), TouchIT Education Koll Sti (“TouchIT Ed”)(“TouchIT Ed” and together with TouchIT Tech KS, “TouchIT”), and the stockholders of TouchIT Tech KS and Touch Ed.Both TouchIT Tech KS and TouchIT Ed are corporations formed under the laws of Turkey and are based in Istanbul, Turkey. The closing of the transaction (the “Closing”) took place on May 7, 2010 (the “Closing Date”), all as disclosed on Form 8-K filed by the Company with the Securities and Exchange Commission on May 24, 2010.See “Recent Developments”.Subsequently, the Registrant amended its Articles of Incorporation to change its name to TouchIT Technologies, Inc., as disclosed on Form 8-K filed by the Registrant with the Securities and Exchange Commission on May 24, 2010. Unless otherwise specified or required by context, as used in this Quarterly Report on Form 10-Q, the terms “we,” “our,” “us” and the “Company” refer collectively to (i) TouchIT Technologies, Inc., a Nevada corporation (“TouchIT”), (ii) TouchIT Tech KS and TouchIT Ed, both being wholly-owned subsidiaries of TouchIT.In this Quarterly Report on Form 10-Q, unless otherwise specified, all dollar amounts are expressed in United States dollars and all references to “common shares” refer to the shares of our common stock, $0.001 par value per share. All financial information presented is for the combined entity TouchIT, which comprises of TouchIT Tech KS and TouchIT Ed. They have not been consolidated and inter-company transactions, although not significant, do exist. CAUTIONARY NOTE ON FORWARD LOOKING STATEMENTS In addition to historical information, this Quarterly Report on Form 10-Q (this “Quarterly Report”) contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. The forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from those reflected in such forward looking statements. Factors that might cause such a difference include, but are not limited to, those discussed in the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Readers are cautioned not to place undue reliance on these forward looking statements, which reflect management’s opinions only as of the date thereof. In some cases, you can identify forward-looking statements by terminology such as “may,” “will,” “should,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” “predicts,” “projects,” “potential,” “proposed,” “intended” or “continue” or the negative of these terms or other comparable terminology. You should read statements that contain these words carefully, because they discuss our expectations about our future operating results or our future financial condition or state other forward-looking information. Although we believe that the expectations reflected in the forward looking statements are reasonable, we cannot guarantee future results, growth rates, and levels of activity, performance or achievements. There may be events in the future that we are not able to accurately predict or control. All forward-looking statements included in this Quarterly Report are based on information available to us on the date of this Quarterly Report.Except to the extent required by applicable laws or rules, we undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained throughout this Quarterly Report. 2 PART I - FINANCIAL INFORMATION Item 1.Financial Statements. TOUCHIT TECHNOLOGIES KS & TOUCH IT EDUCATION TECHNOLOGIES KS COMBINED BALANCE SHEETS FOR THE PERIODS ENDED 31 MARCH 2011 & 2& 2009 (Amounts expressed in US Dollars (USD) in full unless otherwise indicated) CURRENT ASSETS 31/03/2011 31/12/2010 31/03/2010 31/12/2009 Cash and cash equivalents Trade receivables, net Due from related parties Due from Shareholders - Inventories Other current assets Total current assets NON CURRENT ASSETS Property, plant and equipment, net Intangible assets, net - - Rights - - Other non current assets 92 Total non current assets - TOTAL ASSETS CURRENT LIABILITIES Borrowings Trade payables Due to shareholders Due to related parties Other current liabilities Total current liabilities NON CURRENT LIABILITIES Borrowings - - Employee termination benefits - - - Reserve for retirement pay - Share purchase advances - - Total non current liabilities COMMITMENTS AND CONTINGENCIES SHAREHOLDERS' EQUITY Share capital Retained earnings ) ) ) Net income / (loss) for the period ) ) Total shareholders’ equity ) ) ) TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY ) 3 TOUCHIT TECHNOLOGIES KS & TOUCH IT EDUCATION TECHNOLOGIES KS COMBINED STATEMENTS OF COMPREHENSIVE INCOME FOR THE PERIODS ENDED 31 MARCH 2& YEARS ENDED 31 DEC 2010 & 2009 (Amounts expressed in US Dollars (USD) in full unless otherwise indicated) 31/03/2011 31/12/2010 31/03/2010 31/12/2009 NET SALES COST OF SALES ) Gross profit MARKETING AND SELLING EXPENSE ) GENERAL AND ADMINISTRATIVEEXPENSES ) Profit from operations ) ) OTHER INCOME AND EXPENSES, net ) ) FINANCIAL INCOME AND EXPENSES, net ) Profit Loss before taxation and currency translation gain/(loss) ) ) TAXATION CHARGE Taxation current Deferred CURRENCY TRANSLATION GAIN/(LOSS) ) Net income/(loss)for the year ) ) OTHER COMPREHENSIVE INCOME Total comprehensive income ) ) 4 TOUCHIT TECHNOLOGIES KS & TOUCH IT EDUCATION TECHNOLOGIES KS COMBINED STATEMENTS OF CASH FLOW FOR THE PERIODS ENDED 31 MARCH 2011 & 2& 2009 (Amounts expressed in US Dollars (USD) in full unless otherwise indicated) 31/03/2011 31/12/2010 31/03/2010 CASH FLOWS FROM OPERATINGACTIVITIES Net income ) ) Adjustments to reconcile net income to net cash provided By operating activities: Depreciation and amortisation Provision for employee benefit ) ) Changes in operating assets and liabilities Trade receivables, net ) ) ) Due from shareholders ) ) ) Due from related parties ) Inventories ) ) Other current assets Other non current assets ) Trade payables ) ) Due to shareholders ) ) Due to related parties ) Other current liabilities ) ) Share Purchase Advances Net cash generated from (used for)operating activities ) ) CASH FLOWS FROM FINANCING ACTIVITIES Increase/(decrease) in short-term borrowings ) ) 35 Increase/(decrease) in long-termborrowings ) ) Dividends paid Net cash (used for) provided fromfinancing activities ) ) ) CASH FLOWS FROM INVESTING ACTIVITIES Purchases of property, plant and equipment and intangible assets ) ) 0 ) Sharecapital increase Net cash used for investing activities ) ) 0 ) NET INCREASE / (DECREASE) IN CASH AND BANKS ) ) ) CASH AND BANKS AT BEGINNING OF THE YEAR CASH AND BANKS AT END OF THE PERIOD 5 TOUCH IT TECHNOLOGIES KOLLEKTİF ŞİRKETİ RONALD GEORGE MURPHY VE ORTAKLARI FINANCIAL STATEMENTS AS OF 31 MARCH 2011 TOGETHER WITH INDEPENDENT AUDITORS’ REPORT DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Hürriyet Mah. Dr. Cemil Bengü Cad. İş Merkezi No:2 K:1-2 Çağlayan 34403 Kağıthane/İSTANBUL Tel: (0212) (pbx) Fax: (0212) ic. Sic. No: 262368-209940 www.mazarsdenge.com.tr [email protected] 6 INDEPENDENT AUDITORS REPORT To the Board of Directors of Touch IT Technologies Kollektif Şirketi Ronald George Murphy ve Ortakları Report on the Financial Statements We have reviewed the accompanying financial statements of Touch IT Technologies Kollektif Şirketi Ronald George Murphy ve Ortakları (“the Company”) which comprise the financial position as of31 March 2011 and statements of comprehensive income, changes in equity and cash flows for the period then ended, and a summary of significant accounting policies and other explanatory notes. Management Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with Generally Accepted Accounting Principles in the United States of America. This responsibility includes: designing, implementing and maintaining internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error; selecting and applying appropriate accounting policies; and making accounting estimates that are reasonable in the circumstances. Scope of Review Our responsibility is to express a conclusion on these financial statements based on our review. We conducted our review in accordance with International Standards on Auditing. These standards require that we comply with ethical requirements and plan and perform the review to obtain reasonable assurance whether the financial statements are free from material misstatement. A review of interim financial information consists of making inquiries, primarily of persons responsible for financial and accounting matters, and applying analytical and other review procedures. A review is substantially less in scope than an audit conducted in accordance with International Standards on Auditing and consequently does not enable us to obtain assurance that we would become aware of all significant matters that might be identified in an audit. Accordingly, we do not express an audit opinion. Conclusion Based on our review, nothing has come to our attention that causes us to believe that the accompanying interim financial information does not give a true and fair view of the financial position of the Company as at 31 March 2011, and of its financial performance and its cash flows for the three months period then ended in accordance with Accounting Principles Generally Accepted in the United States of America. DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Hürriyet Mah. Dr. Cemil Bengü Cad. İş Merkezi No:2 K:1-2 Çağlayan 34403 Kağıthane/İSTANBUL Tel: (0212) (pbx) Fax: (0212) ic. Sic. No: 262368-209940 www.mazarsdenge.com.tr [email protected] 7 We would like to draw your attention to the following matters: The accompanying financial statements of the Company have been prepared on a going concern basis. However, in the accompanying financial statements, the Company’s current liabilities exceed its current assets by an amount of USD 341,535 and the total equity shows a negative balance amounting to USD258,120 as of March 31, 2011. Accordingly, the continuity of the Company’s operations is dependent on the profitability of future operations and the existence of necessary financial support by shareholders and other creditors. Istanbul, 12 May 2011 DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Member of MAZARS Gökhan Almacı Partner DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Hürriyet Mah. Dr. Cemil Bengü Cad. İş Merkezi No:2 K:1-2 Çağlayan 34403 Kağıthane/İSTANBUL Tel: (0212) (pbx) Fax: (0212) ic. Sic. No: 262368-209940 www.mazarsdenge.com.tr [email protected] 8 TOUCH IT TECHNOLOGIES KOLLEKTİF ŞİRKETİ RONALD GEORGE MURPHY VE ORTAKLARI STATEMENT OF FINANCIAL POSITION AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Notes ASSETS Cash and cash equivalents 5 Trade receivables, net 6 Due from shareholders 7 Inventories, net 8 Other current assets 9 Total current assets Property, plant and equipment, net 10 Intangible assets, net 11 Other non-current assets 12 Total non-current assets Total assets LIABILITIES AND SHAREHOLDERS' EQUITY Short-term bank loans 13 Trade payables 14 Due to shareholders 7 Due to related parties 7 Other current liabilities 15 Total current liabilities Employee termination benefits 16 Total long-term liabilities Shareholders' Equity: Share capital 17 Accumulated deficit ) ) Net profit / (loss) for the period ) Total shareholders’ equity ) ) Total liabilities and shareholders’ equity The accompanying notes form an integral part of these financial statements. 9 TOUCH IT TECHNOLOGIES KOLLEKTİF ŞİRKETİ RONALD GEORGE MURPHY VE ORTAKLARI STATEMENT OF COMPREHENSIVE INCOME FOR THE THREE MONTHS PERIOD ENDED AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Notes 31.03.2010 Sales 18 Cost of sales 19 ) ) Gross profit Marketing and selling expenses 20 ) ) General and administrative expenses 21 ) ) Total operating loss ) ) Financial expenses 23 ) ) Other income / (expense), net 22 ) ) Loss before provision for taxation ) ) Provision for taxation - Current - Deferred Net loss for the period ) ) Other comprehensive income Currency translation differences ) Total comprehensive income / (loss) for the period ) ) The accompanying notes form an integral part of these financial statements. 10 TOUCH IT TECHNOLOGIES KOLLEKTİF ŞİRKETİ RONALD GEORGE MURPHY VE ORTAKLARI STATEMENT OF CASH FLOWS AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Cash flow from operating activities Net loss for the period ) ) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation Provision for employee termination benefit ) Net loss adjusted to non-cash items ) ) Changes in operating assets and liabilities: Change in trade receivables ) Change in due from shareholders ) Change in inventories ) ) Change in other current assets ) ) Change in other non current assets Change in trade payables ) Change in due to shareholders Change in due to related parties ) Change in other current liabilities Net cash used for operating activities ) ) Cash flows from investing activities: Purchased of property and equipment ) Net cash outflows from investing activities ) Cash flows from financing activities: Increase in short-term borrowings ) 35 Decrease in long-termborrowings ) Cash outflows generated by financing activities ) ) Net decrease in cash and cash equivalents ) ) Cash and cash equivalents at the beginning of the period Cash and cash equivalents at the end of the period The accompanying notes form an integral part of these financial statements. 11 TOUCH IT TECHNOLOGIES KOLLEKTİF ŞİRKETİ RONALD GEORGE MURPHY VE ORTAKLARI STATEMENT OF CHANGES IN EQUITY AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Share capital Accumulated deficit Net loss for the year/ period Total Shareholders' Equity Opening balance as of 1 January 2010 ) ) ) Transfer to accumulated deficit ) Net profit (loss) for the year 2010 Balances at 31 December 2010 ) ) Transfer to accumulated deficit ) Net profit / (loss) for the three months period of 2011 ) ) Balances at 31 March 2011 ) ) ) The accompanying notes form an integral part of these financial statements. 12 1. OPERATIONS OF THE COMPANY: General The Company established as a form of partnership (kollektif şirket). In Turkey, partnership is the association of two or more people who co-own a business for trading goods under a trade name. The co-owners have unlimited responsibility to their creditors. This form of companies does not have minimum capital requirements. Nature of activities Touch IT Technologies Kollektif Sirketi Ronald George Murphy ve Ortakları (referred as“Touch IT Technologies”) was established in September 2008. Touch IT Technologies engages primarily in production and trade of technological blackboard run by infrared system. The Company has an operating license in Trakya, Istanbul free zone area for 15 years which commenced on 9 September 2008. On May 7, 2010, Touch IT Education, Touch IT Technologies and their stockholders (“Touch IT Turkey”) entered into a Share Exchange Agreement with Hotel Management Systems, Inc (“Hotel Management”), a Nevada corporation. Pursuant to the terms of the Share Exchange Agreement, Hotel Management issued a total of 48,330,000 shares of their common stock, par value USD 0.001 per share (the “Common Stock”), to the shareholders of Touch IT Technology and Touch IT Education in exchange for the transfer of 100% of the shares of TouchIT Tech and Touch IT Education to Hotel Management. This exchange transaction resulted in Touch IT Technologies and Touch IT Education becoming Hotel Management. The wholly-owned subsidiaries and the stockholders of Touch IT Turkey own approximately 78.93% of the Hotel Management’s issued and outstanding stock, prior to any financing. Simultaneously with the closing of the Share Exchange Agreement, on May 7, 2010, Hotel Management entered into a Subscription Agreement (the “Subscription Agreement”) with investors for the sale of shares up to the value of USD 1,500,000 (the “Purchase Price”). As a result, USD750,000 of the Purchase Price has been recognized in Touch IT Education’s balance sheet as a future obligation to one of the investors. No changes in the shareholder structure of Touch IT Turkey have been made since the formal registration has not yet been completed. Average number of employees of the Company as of 31 March 2010 is 11 while it was 10 as at December 31, 2010. 2. IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS In January 2010, the FASB issued an amendment to ASC 820, “Fair Value Measurements and Disclosure”, to require reporting entities to separately disclose the amounts and business rationale for significant transfers in and out of Level 1 and Level 2 fair value measurements and separately present information regarding purchase, sale, issuance, and settlement of Level 3 fair value measures on a gross basis. This standard is effective for interim and annual reporting periods beginning after 15 December 2009 with the exception of disclosures regarding the purchase, sale, issuance, and settlement of Level 3 fair value measures which are effective for fiscal years beginning after 15 December 2010, its adoption will not have a material impact on the Company’s financial statements. 13 3. BASIS OF PRESENTATION The Company maintains its books of account and prepares its statutory financial statements in accordance with accounting principles in the Turkish Commercial Code and tax legislation and the uniform chart of accounts issued by the Ministry of Finance. The accompanying US Dollar financial statements are based on the statutory records which are obtained under the historical cost convention, with adjustments and reclassifications, for the purpose of fair presentation in accordance with Generally Accepted Accounting Principles in the United States of America (US GAAP). The Company’s fiscal year ends on December 31. Change in Accounting Estimates; In previous period the depreciation expense was presented under both in marketing & selling expense and administrative expense rather than administrative expense. The administrative personnel wages was presented under the direct labor cost rather than administrative expenses. The change in accounting estimates had the following impact on the opening figures; Administrative expense Marketing expense Cost of Sales Balances as reported at 31 March 2010 Classification ) ) Restated balance at 31 March 2010 14 4. SIGNIFICANT ACCOUNTING POLICIES Cash and cash equivalents Cash equivalents consist of highly liquid investments, which are readily convertible into cash, with original maturities of three months or less. Revenue recognition The company recognizes revenue when there is persuasive evidence of an arrangement, delivery has occurred or services are rendered, the sales price is determinable, and collectability is reasonably assured. Revenue typically is recognized at time of shipment. Sales are recorded net of discounts, rebates and returns. Inventories Inventories are stated at the lower of cost or market. Costs, including an appropriate portion of fixed and variable overhead expenses, are assigned to inventories held by the method most appropriate to the particular class of inventory being valued on the weighted average basis. Related parties Parties are considered to be related if one party has the ability to control the other party or exercise significant influence over the other party in making the financial and operating decisions. For the purpose of these financial statements shareholders are referred to as related parties. Related parties also included individuals that are principle owners, management and members of the Company’s Board of Directors and their families. Property, plant and equipment Property, plant and equipment are stated at cost.Depreciation is computed on the straight-line method over the estimated useful lives of the assets. Assets are reviewed for impairment whenever changes in circumstances or events may indicate that the carrying amounts are not recoverable. If the fair value is less than the carrying amount of the asset, a loss is recognized for the difference. The ranges of estimated useful lives are as follows: Machinery and equipments 2-6 years Motor vehicles 4 years Furniture, fixtures and office equipments 4-5 years Intangible assets Intangible assets and related amortization: Intangible fixed assets are carried at cost and are depreciated by using straight-line method over three years. 15 4. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) Borrowing costs The historical cost of acquiring an asset includes the costs necessarily incurred to bring it to the condition and location necessary for its intended use. If an asset requires a period of time in which to carry out the activities necessary to bring it to that condition and location, the interest cost incurred during that period as a result of expenditures for the asset is a part of the historical cost of acquiring the asset. All other borrowing costs are recognized in profit or loss in the period in which they are incurred. Taxation Partnerships (kollektif şirket) are incorporated body according to Turkish Commercial Code; however, partnerships are not recognized as an incorporated body by income tax act. This fact results in paying individual income tax by partnerships, instead of being subject to corporate income tax. Moreover, services rendered by the Company in free zone area is excluded from paying both value added tax and individual income tax. The Company has Operating License for the exemption of income tax which has been taken from Undersecretariat of The Prime Ministry for Foreign Trade, numbered TRY-469, dated on 9 September 2008 and period of validation is 15 years. Foreign currency transactions The Company’s functional and reporting currency is the United States dollar. Monetary assets and liabilities denominated in foreign currencies are translated, using the exchange rate prevailing at the balance sheet date. Non-monetary assets and liabilities denominated in foreign currencies are translated at rates of exchange in effect at the date of the transaction. Average monthly rates are used to translate income and expenses. Gains and losses arising on translation or settlement of foreign currency denominated transactions or balances are included in the determination of income. Following period rates are applicable as of 31 March 2011 and 31 December 2010: USD EURO GBP Average USD Comprehensive income In June 1997, the Financial Accounting Standard Board issued SFAS No. 130, “Reporting Comprehensive Income”. SFAS 130 is effective for years beginning after 15 June 1997. This statement provides reporting standards of comprehensive income and its components and requires that all components of comprehensive income be reported in the financial statements in the period in which they are recognized. The Company has adopted the provisions of SFAS No. 130 in its financial statements and adoption of this statement did not have any effect. 16 4. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) Financial instruments Pursuant to ASC 820, “Fair Value Measurements and Disclosures”, and ASC 825, “Financial Instruments”, an entity is required to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 820 establishes a fair value hierarchy based on the level of independent, objective evidence surrounding the inputs used to measure fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement. ASC 820 prioritizes the inputs into three levels that may be used to measure fair value: Level 1 Level 1 applies to assets or liabilities for which there are quoted prices in active markets for identical assets or liabilities. Level 2 Level 2 applies to assets or liabilities for which there are inputs other than quoted prices that are observable for the asset or liability such as quoted prices for similar assets or liabilities in active markets; quoted prices for identical assets or liabilities in markets with insufficient volume or infrequent transactions (less active markets); or model-derived valuations in which significant inputs are observable or can be derived principally from, or corroborated by, observable market data. Level 3 Level 3 applies to assets or liabilities for which there are unobservable inputs to the valuation methodology that are significant to the measurement of the fair value of the assets or liabilities. The Company’s financial instruments consist principally of cash, trade receivables and payables, borrowings and amount due to related parties. Pursuant to ASC 820, the fair value of cash is determined based on “Level 1” inputs, which consist of quoted prices in active markets for identical assets. It is assumed that carrying amounts of financial instruments approximate their current fair values in line with their short term nature. 5. CASH AND CASH EQUIVALENTS As of 31 March 2011 and 31 December 2010 cash and cash equivalents comprised of the followings: Cash in hand Banks Total 17 6. TRADE RECEIVABLES As of 31 March 2011 and 31 December 2010 trade receivables comprised of followings: Proformance Products Others ( less than USD 60,000) Total 7. RELATED PARTY TRANSACTIONS Due from shareholders has been presented as follows: Due from shareholders Recep Tanışman Total Due to related parties and shareholders has been presented as follows: Due to related parties Emko Emaye ve Yazı Tahtaları ve Eğitim Gereçleri A.Ş. Touch IT Educations Technologies Dış. Tic. Koll. Şirketi Kamron Inc International RT 0 Total Due to shareholders Ali Rıza Tanışman Andrew Brabian Stuart Recep Tanışman Total 18 7. RELATED PARTY TRANSACTIONS (CONTINUED) In the course of conducting its business, the Company conducted various business transactions with related parties on commercial terms Major purchases and service provided from related parties have been presented as follows: Major purchases from related parties Trade goods Emko Emaye ve Yazı Tahtaları ve Eğitim Gereçleri A.Ş. Touch IT Educations Technologies Dış. Tic. Koll. Şirketi Total Services provided Kamron Inc. Emko Emaye ve Yazı Tahtaları ve Eğitim Gereçleri A.Ş. International TR Total Major sales to related parties have been presented as follows: Touch IT Educations Technologies Dış. Tic. Koll. Şirketi Emko Emaye ve Yazı Tahtaları ve Eğitim Gereçleri A.Ş. 8. INVENTORIES: As of 31 March 2011 and 31 December 2010 inventories comprised of the followings: Raw material and supplies Finished goods Advances given for purchases Other inventories Provision for damaged and slow moving stock (-) ) ) Total The insurance on the inventories as of 31 March 2011 and 31 December 2010 is USD 600,000. 19 9. OTHER CURRENT ASSETS: As of 31 March 2011 and 31 December 2010 other receivables and assets comprised of the followings: Prepaid insurance expense Deposits and Guarantees given Other Total PROPERTY, PLANT AND EQUIPMENT, NET The movement of property, plant and equipment, net as of 31 March 2011 and 31 December 2010 is as follows; 1 January 2010 Additions 31 December 2010 Additions 31 March 2011 Cost Machinery and equipment 0 Vehicles 0 Furniture and fixtures Total Depreciation Machinery and equipment ) Vehicles ) Furniture and fixtures ) Total ) Net book value The insurance on property, plant and equipment as of 31 March 2011 and 31 December 2010 is USD 10,000. 20 INTANGIBLE ASSETS, NET The movement of intangible assets, net as of 31 March 2011 and December 2010 is as follows; 1 January 2010 Additions 31 December 2010 Additions 31 March 2011 Cost Rights Other tangible assets Total Depreciation Rights ) Other tangible assets ) Total ) Net book value OTHER NON CURRENT ASSETS: As of 31 March 2011 and 31 December 2010 non-current assets comprised of the prepaid expenses of USD 153 and USD 3,555 respectively. 21 BANK LOANS As of 31 March 2011 and 31 December 2010 bank loans comprised the followings: 31. 03.2011 Short term borrowings TRY bank loans Sub total Long term borrowings TRY bank loans Sub total Total Analysis of bank loans’ repayments is as follows: Within one year Between one to two years Total Bank Loans arise from purchases of two motor vehicles. TRADE PAYABLES As of 31 March 2011 and 31 December 2010, trade payables comprised the followings: Suppliers Other trade payables Total 22 OTHER CURRENT LIABILITIES As of 31 March 2011 and 31 December 2010 other current liabilities comprised the followings: Social security premiums & withholding taxes payable Due to personnel Accrued expenses Advances received Other liabilities 40 40 Total RESERVE FOR EMPLOYEE TERMINATION BENEFITS The principal assumption is that the maximum liability for each year of service will increase parallel with inflation. Thus, the discount rate applied represents the expected real rate after adjusting for the anticipated effects of future inflation. Consequently, in the accompanying financial statements as at 31 March 2011, the provision has been calculated by estimating the present value of the future probable obligation of the Company arising from the retirement of the employees. The anticipated rate of forfeitures is considered. As the maximum liability is revised semi annually, the maximum amount of TRY 2,623 effective from 1 January 2011 has been taken into consideration in calculation of provision from employment termination benefits (2010: TRY 2,517). The principal actuarial assumptions used at the statement of financial position s dates are as follows: Discount rate % % Expected rates of salary / limit increases % % 23 SHARE CAPITAL The shareholders and their participation percentages as of 31 March 2011 and 31 December 2010 are as follows: Shareholding Shareholding Amount % Amount % Ali Rıza Tanışman % % Andrew Stuart Brabin % % Recep Tanışman % % Ronald George Murphy % % Cansın Tanışman % 24 SALES The composition of sales by principal operation for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Clever board Triumph board 78 inch Touch it board 78 inch Touch it board 80 inch Triumph board 80 inch Touch it board 90 inch Touch it board 50 inch Triumph board 50 inch Electronic circuit Others Returns (-) Total COST OF SALES The composition of cost of sales by principal operations for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Direct material cost Direct labor cost General production overheads Ending inventory (trade goods) ) ) Depreciation Cost of Good Sold Cost of Raw Materials Sold Total Cost of Sales 25 MARKETING AND SELLING EXPENSES The composition of marketing and selling expenses by principal operations for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Export expenses Sales & marketing expenses of shareholders Commission expense received from Proforma Consultancy received regarding selling and marketing activities Cargo expenses Software expense Others Total GENERAL AND ADMINISTRATIVE EXPENSES The composition of general and administrative expenses by principal operations for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Shareholders expenses Consulting expenses Personnel expense Retirement pay liability Depreciation Tax and duties Food expenses Other Total . 26 OTHER INCOME AND (EXPENSES), NET The composition of other income and (expenses), net for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Provision for impairment of inventory ) Non tax deductable expenses ) ) Other, net ) Total ) ) FINANCIAL EXPENSES The composition of financial income / (expenses), net for the period ended at 31 March 2011 and 2010 can be summarized as follows: Interest expenses ) ) Other banking expenses ) ) Total ) ) 27 FINANCIAL RISK MANAGEMENT OBJECTIVES AND POLICIES Capital risk management The Company manages its capital to ensure that it will be able to continue as a going concern while maximizing the return to stakeholders through the optimization of the debt and equity balance. The capital structure of the Company consists of debt, which includes the borrowings, cash and cash equivalents and equity, comprising issued capital, reserves and retained earnings. 31 March 2011 Financial assets at amortized cost Loans and receivables Financial liabilities at amortized cost Carrying value Fair value Note Financial assets Cash and cash equivalents 5 Trade receivables 6 Financial liabilities Borrowings 13 Trade payables (including related parties) 7-14 31 December 2010 Financial assets at amortized cost Loans and receivables Financial liabilities at amortized cost Carrying value Fair value Note Financial assets Cash and cash equivalents 5 Trade receivables 6 Financial liabilities Borrowings 13 Trade payables (including related parties) 7-14 28 24. FINANCIAL RISK MANAGEMENT OBJECTIVES AND POLICIES (CONTINUED) Financial risk factors The Company’s activities expose it to variety of financial risks; market risk, credit risk and liquidity risk. The Company’s overall risk management program focuses on the unpredictability of financial markets seeks to minimize potential adverse effects on the Company’s financial performance. Market risk The Company’s activities expose it primarily to the financial risks of changes in foreign currency exchange rates. Foreign currency risk management The Company undertakes certain transactions denominated in foreign currencies. Hence, exposures to exchange rate fluctuations arise. Foreign currency position, net for the period ended at 31 March 2011 and for the years ended 31 December 2010 can be summarized as follows: F/C Foreign Foreign Type Currency TRY Currency TRY Banks USD EUR 78 Trade receivables USD Due from shareholders USD Trade payables USD Due to related parties USD EUR - - Due to shareholders USD Other current liabilities USD Net F/C Assets and Liabilities 29 24.FINANCIAL RISK MANAGEMENT OBJECTIVES AND POLICIES (CONTINUED) Credit risk management Credit risk refers to the risk that counterparty will default on its contractual obligations resulting in financial loss to the Company. The Company has adopted a policy of only dealing with creditworthy counterparties. The Company’s exposure and the credit ratings of its counterparties are continuously monitored and the aggregate value of transactions concluded is spread amongst approved counterparties. Liquidity risk management Liquidity risk arises from the fact that the Company may not receive funds from its counterparties at the expected time. This risk is managed by maintaining a balance between continuity of funding and flexibility through the use of overdrafts and trade receivables. The following tables details the Company’s remaining contractual maturity for its non derivative financial liabilities. The tables have drawn up based on the undiscounted cash flows of financial liabilities based on the earliest date on which the Company can be required to pay. Current Noncurrent Total 31 March 2011 Borrowings Trade payables Due to related parties 31 December 2010 Borrowings Trade payables Due to related parties SUBSEQUENT EVENTS There is no subsequent event has occurred which might affect the financial statements. 30 TOUCH IT EDUCATION TECHNOLOGIES DIŞ TİCARET KOLLEKTİF ŞİRKETİ ANDREW STUART BRABIN VE ORTAĞI FINANCIAL STATEMENTS AS OF 31 MARCH 2011 TOGETHER WITH INDEPENDENT AUDITORS’ REPORT DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Hürriyet Mah. Dr. Cemil Bengü Cad. İş Merkezi No:2 K:1-2 Çağlayan 34403 Kağıthane/İSTANBUL Tel: (0212) (pbx) Fax: (0212) ic. Sic. No: 262368-209940 www.mazarsdenge.com.tr [email protected] 31 INDEPENDENT AUDITORS REPORT To the Board of Directors of Touch It Education Technologies Dış Ticaret Kollektif Şirketi Andrew Stuart Brabin ve Ortağı Report on the Financial Statements We have reviewed the accompanying financial statements of Touch IT Education Technologies Dış Ticaret Kollektif Şirketi Andrew Stuart Brabin ve Ortağı (“the Company”) which comprise the financial position as of 31 March 2011 and statements of comprehensive income, changes in equity and cash flows for the period then ended, and a summary of significant accounting policies and other explanatory notes. Management Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with Generally Accepted Accounting Principles in the United States of America. This responsibility includes: designing, implementing and maintaining internal control relevant to the preparation and fair presentation of financial statements that are free from material misstatement, whether due to fraud or error; selecting and applying appropriate accounting policies; and making accounting estimates that are reasonable in the circumstances. Scope of Review Our responsibility is to express a conclusion on these financial statements based on our review. We conducted our review in accordance with International Standards on Auditing. These standards require that we comply with ethical requirements and plan and perform the review to obtain reasonable assurance whether the financial statements are free from material misstatement. A review of interim financial information consists of making inquiries, primarily of persons responsible for financial and accounting matters, and applying analytical and other review procedures. A review is substantially less in scope than an audit conducted in accordance with International Standards on Auditing and consequently does not enable us to obtain assurance that we would become aware of all significant matters that might be identified in an audit. Accordingly, we do not express an audit opinion. Conclusion Based on our review, nothing has come to our attention that causes us to believe that the accompanying interim financial information does not give a true and fair view of the financial position of the Company as at 31 March 2011, and of its financial performance and its cash flows for the three months period then ended in accordance with Accounting Principles Generally Accepted in the United States of America. DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Hürriyet Mah. Dr. Cemil Bengü Cad. İş Merkezi No:2 K:1-2 Çağlayan 34403 Kağıthane/İSTANBUL Tel: (0212) (pbx) Fax: (0212) ic. Sic. No: 262368-209940 www.mazarsdenge.com.tr [email protected] 32 We would like to draw your attention to the following matters: According to Turkish Tax Legislation, service invoices issued abroad are subject to withholding tax with a rate of 20%, provided that the service has been received in Turkey. During our review of 2011, we have determined significant amount of such invoices under the name of consultant fee and expenses totally amounting to USD 101,791. However, the Company Management does not foresee any risk on the basis of the interpretation that those consultancy services have been received abroad; the Company may face possible tax risk in case of a different interpretation by the tax office. Istanbul, 12 May 2011 DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Member of MAZARS Gökhan Almacı Partner DENGE BAĞIMSIZ DENETİM SERBEST MUHASEBECİ MALİ MÜŞAVİRLİK A.Ş. Hürriyet Mah. Dr. Cemil Bengü Cad. İş Merkezi No:2 K:1-2 Çağlayan 34403 Kağıthane/İSTANBUL Tel: (0212) (pbx) Fax: (0212) ic. Sic. No: 262368-209940 www.mazarsdenge.com.tr [email protected] 33 TOUCH IT EDUCATION TECHNOLOGIES DIŞ TİCARET KOLLEKTİF ŞİRKETİ ANDREW STUARTBRABIN VE ORTAĞI STATEMENT OF FINANCIAL POSITION AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Notes 31.03.2010 ASSETS Cash and cash equivalents 5 Trade receivables, net 6 Due from related parties 7 Due from shareholders 7 Inventories 8 Other current assets 9 Total current assets Rights, net 10 Total non-current assets Total assets LIABILITIES AND SHAREHOLDERS' EQUITY Trade payables 11 Due to shareholders 7 Due to related parties 7 Other current liabilities 12 Total current liabilities Share purchase advances 1 Employee termination benefits 13 Total long-term liabilities Shareholders' Equity: Share capital 14 Retained Earnings Net income / (loss) for the period ) ) Total shareholders’ equity Total liabilities and shareholders’ equity The accompanying notes form an integral part of these financial statements. 34 TOUCH IT EDUCATION TECHNOLOGIES DIŞ TİCARET KOLLEKTİF ŞİRKETİ ANDREW STUART BRABIN VE ORTAĞI STATEMENTS OF INCOME FOR THE THREE MONTHS PERIOD ENDED AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Notes Sales 15 Cost of sales 16 ) ) Gross profit Marketing and selling expenses 17 ) ) General and administrative expenses 18 ) ) Total operating income ) Financial income / (expense), net ) Other income / (expense), net ) Loss before provision for taxation ) Provision for taxation - Current - Deferred Net income for the period ) Other comprehensive income Currency translation differences ) ) Total comprehensive income / (loss) for the period ) The accompanying notes form an integral part of these financial statements. 35 TOUCH IT EDUCATION TECHNOLOGIES DIŞ TİCARET KOLLEKTİF ŞİRKETİ ANDREW STUART BRABIN VE ORTAĞI STATEMENT OF CASH FLOW AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Cash flow from operating activities Net income for the period ) Adjustments to reconcile net loss to net cash provided by operating activities: Depreciation Provision for employee termination benefit ) Net income adjusted to non-cash items ) Changes in operating assets and liabilities: Change in trade receivables ) Change in due from related parties ) Change in due from shareholders 15 ) Change in inventories ) Change in other current assets ) 83 Change in trade payables ) Change in due to related parties ) ) Change in due to shareholders ) Change in other current liabilities ) Net cash provided from operating activities Cash flows from investing activities: Purchased of property and equipment Net cash provided from investing activities Cash flows from financing activities: Increase/(decrease) in short-term borrowings Increase/(decrease) in long-termborrowings Cash flows provided by financing activities Net decrease in cash and cash equivalents Cash and cash equivalents at the beginning of the period Cash and cash equivalents at the end of the period The accompanying notes form an integral part of these financial statements. 36 TOUCH IT EDUCATION TECHNOLOGIES DIŞ TİCARET KOLLEKTİF ŞİRKETİ ANDREW STUART BRABIN VE ORTAĞI STATEMENT OF CHANGES IN EQUITY AS OF 31 MARCH 2 (All amounts are expressed in US Dollars (USD) in full, unless otherwise indicated) Share capital Retained Earnings Net income for theyear / period Total Shareholders' Equity Balances at 1 January 2010 Share capital increase Transfer to retained earnings ) Net income for the year ) ) Balances at 31 December 2010 ) Transfer to retain earnings ) 0 Net profit / (loss) for the three months period ) ) Balances at 31 March 2011 ) The accompanying notes form an integral part of these financial statements. 37 1. OPERATIONS OF THE COMPANY: General The Company established as a form of partnership (kollektif şirket). In Turkey, partnership is the association of two or more people who co-own a business for trading goods under a trade name. The co-owners have unlimited responsibility to their creditors. This form of companies does not have minimum capital requirements. Nature of Activities Touch IT Education Technologies Dıs Ticaret Kollektif Sirketi Andrew Stuart Brabin ve Ortağı, formerly RT Lojistik Dıs Ticaret Kollektif Sirketi Recep Tanısman ve Ortağı; (referred as “Touch ITEducation”) was established on 27 August 2007 with a ‘‘Share Transfer of Open Company andAmendment Agreement’’. Touch IT Education primarily engages in sales and purchases of theinteractive writing board and all educational equipment. On May 7, 2010, Touch IT Education, Touch IT Technologies and their stockholders (“Touch ITTurkey”) entered into a Share Exchange Agreement with Hotel Management Systems, Inc (“HotelManagement”), a Nevada corporation. Pursuant to the terms of the Share Exchange Agreement, Hotel Management issued a total of 48,330,000 shares of their common stock, par value USD 0.001 per share (the “Common Stock”), tothe shareholders of Touch IT Technology and Touch IT Education in exchange for the transfer of100% of the shares of TouchIT Tech and Touch IT Education to Hotel Management. This exchange transaction resulted in Touch IT Technologies and Touch IT Education becoming Hotel Management. The wholly-owned subsidiaries and the stockholders of Touch IT Turkey own approximately 78.93% of the Hotel Management’s issued and outstanding stock, prior to any financing. Simultaneously with the closing of the Share Exchange Agreement, on May 7, 2010, Hotel Management entered into a Subscription Agreement (the “Subscription Agreement”) with investorsfor the sale of shares up to the value of USD 1,500,000 (the “Purchase Price”). As a result, USD750,000 of the Purchase Price has been recognized in Touch IT Education’s balance sheet as a future obligation to one of the investors. No changes in the shareholder structure of Touch IT Turkey have been made since the formal registration has not yet been completed Average number of employees of the Company as of 31 March 2011 is 9 while it was 6 as at December 31, 2010. 2. IMPACT OF RECENTLY ISSUED ACCOUNTING STANDARDS In January 2010, the FASB issued an amendment to ASC 820, “Fair Value Measurements and Disclosure”, to require reporting entities to separately disclose the amounts and business rationale for significant transfers in and out of Level 1 and Level 2 fair value measurements and separately present information regarding purchase, sale, issuance, and settlement of Level 3 fair value measures on a gross basis. This standard is effective for interim and annual reporting periods beginning after 15 December 2009 with the exception of disclosures regarding the purchase, sale, issuance, and settlement of Level 3 fair value measures which are effective for fiscal years beginning after 15 December 2010, its adoption will not have a material impact on the Company’s financial statements. 3. BASIS OF PRESENTATION The Company maintains its books of account and prepares its statutory financial statements in accordance with accounting principles in the Turkish Commercial Code and tax legislation and the uniform chart of accounts issued by the Ministry of Finance. The accompanying US Dollar financial statements are based on the statutory records which are obtained under the historical cost convention, with adjustments and reclassifications, for the purpose of fair presentation in accordance with Generally Accepted Accounting Principles in the United States of America (US GAAP). The Company’s fiscal year ends on December 31. 38 4. SIGNIFICANT ACCOUNTING POLICIES: Cash and cash equivalents Cash equivalents consist of highly liquid investments, which are readily convertible into cash, with original maturities of three months or less. Revenue recognition The Company recognizes revenue when there is persuasive evidence of an arrangement, delivery has occurred or services are rendered, the sales price is determinable, and collectability is reasonably assured. Revenue typically is recognized at time of shipment. Sales are recorded net of discounts, rebates and returns. Inventories Inventories are stated at the lower of cost or market. Costs, including an appropriate portion of fixed and variable overhead expenses, are assigned to inventories held by the method most appropriate to the particular class of inventory being valued on the weighted average basis. Related parties Parties are considered to be related if one party has the ability to control the other party or exercise significant influence over the other party in making the financial and operating decisions. For the purpose of these financial statements shareholders are referred to as related parties. Related parties also included individuals that are principle owners, management and members of the Company’s Board of Directors and their families. Rights Rights are stated at cost. Depreciation is computed on the straight-line method over the estimated useful lives of the assets. Assets are reviewed for impairment whenever changes in circumstances or events may indicate that the carrying amounts are not recoverable. If the fair value is less than the carrying amount of the asset, a loss is recognized for the difference. Taxation Partnerships (kollektif şirket) are incorporated body according to Turkish Commercial Code; however, partnerships are not recognized as an incorporated body by income tax act. This fact results in paying individual income tax by partnerships, instead of being subject to corporate income tax. Moreover, services rendered by the Company in free zone area is excluded from paying both value added tax and individual income tax. The Company has Operating Licence for the exemption of income tax which is taken from Undersecretariat of The Prime Ministry for Foreign Trade, numbered TRY-149, dated 1 November 2001 and period of validation is 15 years. Retirement pay provision Under Turkish laws, lump sum payments are made to employees retiring or involuntarily leaving the Company. Such payments are considered as being part of defined retirement benefit plan. The retirement benefit obligation recognised in the balance sheet represents the present value of the defined benefit obligation as adjusted for unrecognised actuarial gains and losses. 39 4. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) Foreign currency transactions The Company’s functional and reporting currency is the United States dollar. Monetary assets and liabilities denominated in foreign currencies are translated, using the exchange rate prevailing at the balance sheet date. Non-monetary assets and liabilities denominated in foreign currencies are translated at rates of exchange in effect at the date of the transaction. Average monthly rates are used to translate income and expenses. Gains and losses arising on translation or settlement of foreign currency denominated transactions or balances are included in the determination of income. Following period rates are applicable as of 31 March 2011 and 31 December 2010: USD EURO GBP Average USD Leasing - the Company as lessee Leases are classified as capital leases whenever the terms of the lease transfer substantially all the risks and rewards of ownership to the lessee. All other leases are classified as operating leases. Comprehensive income In June 1997, the Financial Accounting Standard Board issued SFAS No. 130, “Reporting Comprehensive Income”. SFAS 130 is effective for years beginning after 15 June 1997. This statement provides reporting standards of comprehensive income and its components and requires that all components of comprehensive income be reported in the financial statements in the period in which they are recognized. The Company has adopted the provisions of SFAS No. 130 in its financial statements and adoption of this statement did not have any effect. Financial Instruments Pursuant to ASC 820, “Fair Value Measurements and Disclosures”, and ASC 825, “Financial Instruments”, an entity is required to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. ASC 820 establishes a fair value hierarchy based on the level of independent, objective evidence surrounding the inputs used to measure fair value. A financial instrument’s categorization within the fair value hierarchy is based upon the lowest level of input that is significant to the fair value measurement. ASC 820 prioritizes the inputs into three levels that may be used to measure fair value: Level 1 Level 1 applies to assets or liabilities for which there are quoted prices in active markets for identical assets or liabilities. 40 4. SIGNIFICANT ACCOUNTING POLICIES (CONTINUED) Financial Instruments (continued) Level 2 Level 2 applies to assets or liabilities for which there are inputs other than quoted prices that are observable for the asset or liability such as quoted prices for similar assets or liabilities in active markets; quoted prices for identical assets or liabilities in markets with insufficient volume or infrequent transactions (less active markets); or model-derived valuations in which significant inputs are observable or can be derived principally from, or corroborated by, observable market data. Level 3 Level 3 applies to assets or liabilities for which there are unobservable inputs to the valuation methodology that are significant to the measurement of the fair value of the assets or liabilities. The Company’s financial instruments consist principally of cash, trade receivables and payables, borrowings and amounts due from and due to related parties. Pursuant to ASC 820, the fair value of cash is determined based on “Level 1” inputs, which consist of quoted prices in active markets for identical assets. 5. CASH AND CASH EQUIVALENTS As of 31 March 2011 and 31 December 2010 cash and cash equivalents comprised of the followings: Cash in hand Banks Total 6. TRADE RECEIVABLES As of 31 March 2011 and 31 December 2010 trade receivables comprised of followings: Trade receivables Provision for doubtful receivables (-) ) ) Total The provision has been booked for the receivables from Proformance Product and Truimphboard S.R.O. 41 7. RELATED PARTY TRANSACTIONS: In the course of conducting its business, the Company conducted various business transactions with related parties on commercial terms. Related parties and shareholders balances and transactions have been presented as follows: Due from related parties Emko Yazı Tahtaları ve Eğitim Gereçleri A.Ş. Touch IT Technologies Koll. Şti Ronald George Murphy ve Ortakları Total Due from shareholders Andrew Stuart Brabin Total Due to related parties Kamron Inc ASB Trading Total Due to shareholders Ali Rıza Tanışman Total Major purchases from related parties have been presented as follows: Major purchases from related parties Touch It Technologies Koll. Şti. Ronald George Murphy ve Ortakları Total Major sales to related parties Emko Yazı Tahtaları ve Eğitim Gereçleri A.Ş. Touch IT Technologies Koll. Şti. Ronald George Murphy ve Ortakları Total 42 7. RELATED PARTY BALANCES AND TRANSACTIONS (COUNTINUED): Service provided by Kamron Inc. Andrew Stuart Brabin Total 8. INVENTORIES As of 31 March 2011 and 31 December 2010 inventories comprised of the followings: Trade goods Advances given for purchases(*) Total (*) The majority of the balance comprise of advance given to Songtian Orient Corporation amounting USD 122,602 (in 2,960) for the purchase of LCD monitor and Xiamen Interactive Technology Co.,Ltd. amounting to USD 69,381 ( in 2,584)for the purchase of electronic circuit as of March 31, 2011. The insurance on the inventories as of 31 March 2011 and 31 December 2010 is USD 100,000. 9. OTHER CURRENT ASSETS: As of 31 March 2011 and 31 December 2009 other receivables and assets comprised of prepaid expenses of USD 247 and 221 respectively. NON-CURRENT ASSETS As of 31 March 2011 and 31 December 2010 non-current assets comprised of followings: License right Depreciation allowance ) ) Total Rights represent the operating license obtained from Under secretariat of The Prime Ministry for Foreign Trade. The validation date of the licence has been extended from 10 year to 15 year in 2010. 43 TRADE PAYABLES As of 31 March 2011 and 31 December 2010 trade payables comprised as of the followings: Trade payables Total OTHER CURRENT LIABILITIES As of 31 March 2011 and 31 December 2010 other current liabilities comprised of the followings: Taxes and funds payable Social security premiums and withholding taxes payable Accrued expenses Advances received Due to personnel Total RESERVE FOR EMPLOYMENT TERMINATION BENEFITS The principal assumption is that the maximum liability for each year of service will increase parallel with inflation. Thus, the discount rate applied represents the expected real rate after adjusting for the anticipated effects of future inflation. Consequently, in the accompanying financial statements as at 31 March 2011, the provision has been calculated by estimating the present value of the future probable obligation of the Company arising from the retirement of the employees. The anticipated rate of forfeitures is considered. As the maximum liability is revised semi annually, the maximum amount of TRY 2,623 effective from 1 January 2011 has been taken into consideration in calculation of provision from employment termination benefits (2010: TRY 2,517). 44 SHARE CAPITAL The issued share capital of the Company is respectively for the period ended at 31 March 2011 and for the years ended 31 December 2010 comprised as follows; Shareholding Shareholding Amount % Amount % Andrew Stuart Brabin 72 72 Ali Rıza Tanışman 4 4 Recep Tanışman 20 20 Cansın Tanışman 2 2 Volkan Tanışman 2 2 SALES The composition of sales by principal operation for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Electronic set Remote Control for classroom Touch IT board Others Returns (-) Total COST OF SALES The composition of cost of sales by principal operations for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Beginning inventory of trade goods Purchases Ending inventory of trade goods (-) ) ) Total 45 MARKETING AND SELLING EXPENSES The composition of marketing and selling expenses by principal operations for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Export expenses Consultancy expenses (*) Other expenses Total (*) The vast majority of the balance comprises of consultancy invoices issued by Kamron and ASB. GENERAL AND ADMINISTRATIVE EXPENSES The composition of general and administrative expenses by principal operations for the period ended as at 31 March 2011 and 2010 can be summarized as follows: Audit and consultancy expenses Salaries Rental expenses Depreciation Other expenses Total 19. OTHER INCOME AND (EXPENSES), net: The composition of other income and expenses for the years ended at 31 December 2010 and 2009 can be summarized as follows: Provision for doubtful receivables ) Other expense ) Other income Total ) 46 FINANCIAL RISK MANAGEMENT OBJECTIVES AND POLICIES Capital risk management The Company manages its capital to ensure that it will be able to continue as a going concern while maximizing the return to stakeholders through the optimization of the debt and equity balance. The capital structure of the Company consists of debt, which includes the borrowings, cash and cash equivalents and equity, comprising issued capital, reserves and retained earnings. 31 March 2011 Financial assets at amortized cost Loans and receivables Financial liabilities at amortized cost Carrying value Fair value Note Financial assets Cash and cash equivalents 5 Trade receivables (including related parties) 6-7 Financial liabilities Trade payables (including related parties) 7-11 31 December 2010 Financial assets at amortized cost Loans and receivables Financial liabilities at amortized cost Carrying value Fair value Note Financial assets Cash and cash equivalents 5 Trade receivables (including related parties) 6-7 Financial liabilities Trade payables (including related parties) 7-11 Financial risk factors The Company’s activities expose it to variety of financial risks; market risk, credit risk and liquidity risk. The Company’s overall risk management program focuses on the unpredictability of financial markets seeks to minimize potential adverse effects on the Company’s financial performance. Market risk The Company’s activities expose it primarily to the financial risks of changes in foreign currency exchange rates. 47 FINANCIAL RISK MANAGEMENT OBJECTIVES AND POLICIES (CONTINUED) Foreign currency risk management The Company undertakes certain transactions denominated in foreign currencies. Hence, exposures to exchange rate fluctuations arise. Foreign currency position, net for the period ended at 31 March 2011 and for the years ended 31 December 2010 can be summarized as follows: F/C Foreign TRY Foreign TRY Type Currency Currency Banks USD EUR 22 47 19 38 Due from related parties USD Trade receivables USD Advances given USD (Inventories) Trade payables USD Advances received USD (Other current liabilities) Due to related parties USD Share purchase advances USD Net F/C Assets / (Liabilities) 48 FINANCIAL RISK MANAGEMENT OBJECTIVES AND POLICIES (CONTINUED) Credit risk management Credit risk refers to the risk that counterparty will default on its contractual obligations resulting in financial loss to the Company. The Company has adopted a policy of only dealing with creditworthy counterparties. The Company’s exposure and the credit ratings of its counterparties are continuously monitored and the aggregate value of transactions concluded is spread amongst approved counterparties. Liquidity risk management Liquidity risk arises from the fact that the Company may not receive funds from its counterparties at the expected time. This risk is managed by maintaining a balance between continuity of funding and flexibility through the use of overdrafts and trade receivables. The following tables details the Company’s remaining contractual maturity for its non derivative financial liabilities. The tables have drawn up based on the undiscounted cash flows of financial liabilities based on the earliest date on which the Company can be required to pay. Current Noncurrent Total 31 March 2011 Trade payables (including related parties) 31 December 2010 Trade payables (including related parties) SUBSEQUENT EVENTS There is no subsequent event has occurred which might affect the financial statements. 49 Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations. The following discussion and analysis of our financial condition and results of operations should be read in conjunction with our financial statements and the related notes appearing elsewhere in this Quarterly Report. This discussion and analysis may contain forward-looking statements based on assumptions about our future business. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including, but not limited to, those set forth under “Risk Factors” and elsewhere in this Quarterly Report. Forward-Looking Statements This Quarterly Report contains forward-looking statements. The forward-looking statements are contained principally in, but not limited to, the sections entitled “Risk Factors,” “Management’s Discussion and Analysis or Plan of Operation,” “Business” and those listed in our other Securities and Exchange Commission filings.Forward-looking statements provide our current expectations or forecasts of future events. Forward-looking statements include statements about our expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. Words or phrases such as “anticipate,” “believe,” “continue,” “ongoing,” “estimate,” “expect,” “intend,” “may,” “plan,” “potential,” “predict,” “project” or similar words or phrases, or the negatives of those words or phrases, may identify forward-looking statements, but the absence of these words does not necessarily mean that a statement is not forward-looking. Forward-looking statements are subject to known and unknown risks and uncertainties and are based on potentially inaccurate assumptions that could cause actual results to differ materially from those expected or implied by the forward-looking statements. Our actual results could differ materially from those anticipated in forward-looking statements for many reasons, including the factors described in the section entitled “Risk Factors” in this Report. Accordingly, you should not unduly rely on these forward-looking statements, which speak only as of the date of this Report. Unless required by law, we undertake no obligation to publicly revise any forward-looking statement to reflect circumstances or events after the date of this Report or to reflect the occurrence of unanticipated events. You should, however, review the factors and risks we describe in the reports we will file from time to time with the SEC after the date of this Report. Management cautions that these statements are qualified by their terms and/or important factors, many of which are outside of our control, and involve a number of risks, uncertainties and other factors that could cause actual results and events to differ materially from the statements made, including, but not limited to, the following: ●actual or anticipated fluctuations in our quarterly and annual operating results; ●actual or anticipated product constraints; ●decreased demand for our products resulting from changes in consumer preferences; ●product and services announcements by us or our competitors; ●loss of any of our key executives; ●regulatory announcements, proceedings or changes; ●announcements in the touch technology community; ●competitive product developments; ●intellectual property and legal developments; ●mergers or strategic alliances in the touch technology industry; ●any business combination we may propose or complete; ●any financing transactions we may propose or complete; or ●broader industry and market trends unrelated to its performance. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot guarantee future results, levels of activity, performance, or achievements. Plan of Operation The ability of our Company to achieve our business objectives is contingent upon our success in raising additional capital until adequate revenues are realized from operations. We are a manufacturer of touch based visual communication products for education and corporate worldwide marketplaces. Our mission is to design and manufacture high quality technology products. We manufacture a large range of touch screen and touch board products to suite all types of application from pen input wireless tablets, to large enameled steel touch-sensitive interactive whiteboards and large interactive liquid crystal displays ("LCD"). Our products stand out from the competition in terms of their design, functionality and price offering.Our customers seek our products as they provide them with a different point of entry to the market in terms of price, quality of design and margin. Currently, demand for our products is exceeding our ability to supply. In the past three years, we have designed, manufactured, launched, developed and sold four new products as well as established the business from scratch and equipped a factory. 50 COMPANY OVERVIEW We manufacture touch-based visual communication products foreducation and corporate worldwide marketplaces. Our products stand out fromour competition in terms of their design, functionality and price offering. Our customers seek our products as they provide them a different point of entry to the market in terms of price, quality of design and margin. In our first year of trading, we exceeded revenues of $2 million USD having designed, manufactured, launched and sold four new products as well as established the business and equipped a factory.Our second full year of trading saw 176% growth as we expanded into world-wide markets. On January 10, 2011, we forecasted our 2011 revenue projections to be $9 million. However, having had a slow first quarter this year,our ability to hit this target will depend upon whether we may obtain a large number of tender opportunities. Our keys to success are: 1.Establish and maintain working relationships and contractual agreements with distribution and original equipment manufacturer ("OEM") customers; 2.Increase our profit margin by lowering the import and raw material costs by bulk purchasing from vendors; 3.By increasing our purchasing power, we can increase our stock holding and lowering delivery times to customers thus enabling further sales growth; and 4.Effectively communicate with our current and potential customers, through targeted efforts, our position as a differentiated provider of the highest quality of margin laden touch-based communication products. Recent Developments On May 7, 2010, we (which at that time was called Hotel Management Systems, Inc.), entered into a Share Exchange Agreement with TouchIT Tech KS, the stockholders of TouchIT Tech KS, TouchIT Ed, and the stockholders of TouchIT Ed.Both TouchIT Tech KS and TouchIT Ed are corporations formed under the laws of Turkey and are based in Istanbul, Turkey. The Closing took place on May 7, 2010. In connection with the closing of the Share Exchange Agreement, on May 7, 2010, we entered into a Subscription Agreement (the “Subscription Agreement”) with certain investors for the sale of up to $1,500,000 (the "Purchase Price"), which was represented by the convertible promissory notes of our Company (“Note” or “Notes”) and share purchase warrants (the “Warrants”) to purchase shares of Common Stock (the “Warrant Shares”).Due to the non-provision of the second $750,000 by certain investors, we cancelled the Notes for $250,000 and $500,000 including the underlying Warrant Shares. On February 16, 2011, we borrowed Two Hundred Fifty Thousand Dollars ($250,000) (the "Advance") from TCA Global Credit Master Fund, LP (the "Lender") pursuant to a revolving credit facility evidenced by a Credit Agreement with an effective date as of November 30, 2010 (the "Credit Agreement"). The Credit Agreement evidences a revolving credit facility in the minimum principal amount of $250,000, which subject to Lender approval may be increased up to One Million Dollars ($1,000,000) (the "Loan"). Interest on the Advance accrues at the rate of eight percent (8%) per annum and the outstanding and accrued interest is due and payable on a bi-monthly basis. The outstanding principal amount is due on February 16, 2012 (the "Maturity Date"). The revolving loan is also evidenced by a Revolving Note (the "Note"). The Credit Agreement and Note are secured by, among other things, (i) the Security Agreement made by and between the Company and the Lender pursuant to which the Borrower has granted a security interest in all of the Borrower's assets to the Lender (the "Security Agreement"), (ii) a personal guaranty and validity guaranty executed by Andrew Brabin, Chief Financial Officer ofour Company, and (iii) a personal guaranty and validity guaranty executed by Recep Tanisman, the Chief Executive Officer ofour Company. Pursuant to the Credit Agreement, on February 16, 2011, our Company issued to the Lender One Hundred Thousand (100,000) shares of our common stock, par value at $0.001 per share (the "Restricted Shares"), which have piggy back registration rights as part of any registration statement filed by our Company and full ratchet rights and anti-dilution rights during the six months following February 16, 2011. Furthermore, we also issued to Lender Twenty-Five Thousand (25,000) shares of our Company's Series A convertible preferred stock with a par value of $0.001, which such shares shall be converted into shares of common stock of our Company on February 16, 2012 upon the satisfaction of certain conditions (including if the value of the Restricted Shares is less than $45,000 on February 16, 2012 based on the average closing price for the 30 trading days prior thereto). 51 The Credit Agreement also includes customary representations and warranties and affirmative and negative covenants, including, among others, payment of certain customary fees and expenses (including commitment, monitoring and diligence fees), covenants relating to financial reporting, maintenance of property and insurance, incurrence of liens and/or other indebtedness. The Credit Agreement also contains customary provisions for events of default, remedies in circumstances of default, required notices, governing law and jurisdiction of governance. Upon the occurrence of an event of default (as defined in the Credit Agreement), the Lender may, at its option, declare its commitments to us to be terminated and all obligation and commitments to be immediately due and payable. For all the terms and conditions of the Credit Agreement, the Security Agreement and the Note, reference is hereby made to such documents respectively filed as Exhibits 10.1, 10.2 and 10.3 as part of the Form 8-K filed with the Securities and Exchange Commission on February 23, 2011. All statements made herein concerning the foregoing document are qualified by reference to said Exhibits. We have seen that the credit line has increased the liquidity of our business by improving cash flow and reducing the debtor days for an average of 45 down to less than 15. We expect to continue to use this Credit Facility for the foreseeable future. The decision to increase this line will be dependent on the increase of eligible receivables (those from the USA and UK) and management will make a decision based on sales history and forecasts from the customer base. We have also signed a new distribution partner in South Africa and have shipped the first container of goods which should arrive with the customer in due course. We view South Africa as a new market where interactive product penetration is low and expects to see significant growth from the region. We will continue to expand in the Middle East as sales in the region continue to grow. Our Sales Manager for the region is actively recruiting both new channel partners we well as distribution partners. Saudi Arabia continues to be the strongest country for sales and growth in the region. We entered into discussions with Hitachi Solutions Europe Ltd. (“Hitachi”) as well as delegates from Japan for the OEM of the TouchIT Board under the Hitachi brand name for certain markets around the world. We arealso in discussions with Hitachi for the production of one of their products in Europe. This would help Hitachi European manufactures by enabling them to supply their customer base with their products in a more timely manor and with cheaper freight prices. We will ship our first product to Hitachi in May. We continue to developa new range of Interactive LCD products which we plan to launch in the third quarter of 2011. These products will include a 42”, a 55”, and a 65” LCD. All of these products will be full high definition and touch-based, and may include options of multiple input “multi-touch” on these models. These models will replace the 57”. Our Company’s management took the decision to broaden the LCD range due to feedback and growing demand from the markets. We have shipped samples to various key customers around the world for analysis and feedback. During the quarter, we have initiated an investor relations program by engaging Cooper Global Communications (“CGC”), which is based in New York. The program’s goal is to provide visibility to our Company in the investment community both in Europe and in the United States. We will continue to look into the viability of an OEM offering of a content software that is suitable for both 7-11 and 11-16 age groups. If concluded, the software will be sold in conjunction with our existing products to strengthen the product portfolio. We have also undertaken a product analysis of Interactive Projectors. Through a Chinese vendor, our Company’s management has evaluated the Interactive Projector market and has concluded that at this time, we will not be entering this market. This decision was made in conjunction with key customer feedback. Last, we have undertaken significant research and development of surface materials for use on the interactive product line. This research will enable our Company to produce a lighter yet stronger interactive whiteboard surface in the future. This new product will be particularly pertinent to any OEM discussions with Hitachi Solutions Europe Ltd as the surface flatness tolerance imposed by their specifications can now be met as a result. Off-Balance Sheet Arrangements We do not have any off-balance sheet arrangements. 52 CRITICAL ACCOUNTING POLICIES AND ESTIMATES The accompanying financial statements include the financial statements of TouchIT Tech KS and TouchIT Ed. Although not significant, it should be noted that inter-company transactions and balances do exist and have not been consolidated. TouchIT Tech KS and TouchIT Ed together are also referred to as the “Company.” This management's discussion and analysis of our financial condition and results of operations are based on the financial statements of both TouchIT Tech KS and TouchIT Ed, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements as well as the reported net sales and expenses during the reporting periods. On an ongoing basis, we will evaluate these estimates and assumptions. We base our estimates on historical experience and on various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions. We believe that the following accounting policies are the most critical to aid you in fully understanding and evaluating this management discussion and analysis: Basis of presentation financial statements: Our Company maintainsour books of account and preparesour statutory financial statements in accordance with accounting principles in the Turkish Commercial Code and tax legislation. The accompanying financial statements are based on the statutory records, with adjustments and reclassifications, for the purpose of fair presentation in accordance with United States generally accepted accounting principles (“US GAAP”). There are inter-company transactions that have not been consolidated on these financial statements. Revenue recognition: Revenue is measured at the fair value of the consideration received or receivable. Revenue is reduced for customer returns, rebates, and other similar allowances. Inventories: Inventories are stated at the lower of cost or net realizable value. Costs, including an appropriate portion of fixed and variable overhead expenses, are assigned to inventories held by the method most appropriate to the particular class of inventory being valued on the weighted average basis. Net realizable value represents the estimated selling price less all estimated costs of completion and costs necessary to deliver service. Property, plant and equipment: Property, plant and equipment are carried at cost less accumulated depreciation and any accumulated impairment losses, if any. Depreciation is charged so as to write off the cost of assets, other than land and construction in progress, over their estimated useful lives, using straight line method. The estimated useful lives, residual values and depreciation method are reviewed at each year end, with the effect of any changes in estimate accounted for on a prospective basis. Assets held under finance leases are depreciated over their expected useful lives on the same basis as owned assets or, where shorter, the term of the relevant lease. The gain or loss arising on the disposal or retirement of an item of property, plant and equipment is determined as the difference between the sales proceeds and the carrying amount of the asset and is recognized in profit or loss. The ranges of estimated useful lives are as follows: - Machinery and equipments: 2-6 years - Motor vehicles: 4 years - Furniture, fixtures and office equipments: 4-5 years Shipping and handling: Shipping and handling costs related to costs of the raw material purchased is included in cost of revenues. 53 Research and development costs: Research and development costs are expensed as incurred. The costs of material and equipment that are acquired or constructed for research and development activities, and have alternative future uses, either in research and development, marketing, or sales, are classified as property and equipment or depreciated over their estimated useful lives. Company reporting year end: We use a calendar year asour fiscal year ending December 31. RESULTS OF OPERATIONS TOUCHIT TECH KSAND TOUCHIT ED COMBINED STATEMENTS OF COMPREHENSIVE INCOME FOR QUARTER ENDED MARCH 31, 2011 & 2010 (Amounts expressed in US Dollars (USD) in full unless otherwise indicated) 31/03/2011 31/03/2010 NET SALES COST OF SALES ) ) Gross profit MARKETING AND SELLING EXPENSE ) ) GENERAL AND ADMINISTRATIVEEXPENSES ) ) Profit from operations ) OTHER INCOME AND EXPENSES, net ) ) FINANCIAL INCOME AND EXPENSES, net ) ) Profit Loss before taxation and currency translation gain/(loss) ) TAXATION CHARGE Taxation current Deferred CURRENCY TRANSLATION GAIN/(LOSS) ) Net income/(loss)for the year ) OTHER COMPREHENSIVE INCOME Total comprehensive income ) NET SALES (REVENUE) – For the first three months of the quarter ended March 31, 2010 as compared to quarter ended March 31, 2011, revenue has decreased by 26% or by $272,353 from $1,046,011 to $773,658. This decrease can be attributed to a slow down in the market due to uncertain budgetary commitments from certain of our customers. Management also notes that the first quarter in 2010 was abnormally high for this time of theyear. Typically, the third and fourth quarters are the strongest quarters for our market. Our going forward sales activity, including the first quarter, also reflects our management’s plan of increasing focus on the development of recurring business in existing and new markets in lieu of non-recurring tender business. An example of this is our penetration into South Africa. Our management does anticipate that revenues will continue to grow for the balance of the year in light of the regular run rate business growth combined with our initiatives that we have recently made regarding the LCD product line. GROSS PROFIT – For the first three months of the quarter ended March 31, 2011 as compared to quarter ended March 31, 2010, gross profit has decreased by 33% or $110,084 from $326,976 to $216,892. This is primarily due to the decrease in sales revenue; however, the percentage of profit over revenue has increased showing gross margins have increased. 31/03/2011 31/03/2010 31/12/2009 NET SALES COST OF SALES ) ) ) Cost of sales as a % 72

Title: [CA] Became a virtual intern at a small start up company where almost all of the "employees" appear to be interns. Question:I recently became an unpaid virtual intern for a small start up company. Not disclosing the name of the company, but it is a for-profit tutoring website, similar to SkimaTalk or iTalki. I have been a tutor on those websites in the past. This website's HQ is located in San Diego, California. There are only a handful of employees working in the office that I'm aware of, but I'm fairly certain that they are all interns. Everyone else not in the office is considered a Virtual Intern (like myself, since I don't work at the office). I am in charge of: writing blog articles, contributing to social media content, uploading two short videos to my profile a week, being available *for free* as a tutor on the website for certain amounts of time (whereas tutors on the website who aren't interns can set their own rates) while the rest of my free time - e.g., not when I'm "working" - I can set my rates, Japanese translation, and, because the CEO likes me so much, I recently assumed the role as blog administrator that was previously his wife's job (which means I proofread, edit, and decide which articles get posted from the other interns). Now, I understand from [this page](https://www.dol.gov/whd/regs/compliance/whdfs71.htm) that there are certain rules about whether or not an intern can legally be unpaid. There are a few parts of the test on that page that concern me: * *The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;* This bothers me because I am not exactly learning anything from the experience. I am actually overqualified for the role. I have 3 years of tutoring experience, I am highly competent with social media, I have translated before, and I have run a few of my own blogs in the past. * *The intern does not displace regular employees, but works under close supervision of existing staff;* The part about displacing regular employees is the big one for me. For example: the person who interviewed me was an intern, the person who did my onboard "orientation" was an intern, and the person who facilitated our weekly online meeting today and MANAGES THE VIRTUAL TEAM is also an intern who works physically in the office. Other interns share the same roles that I do. All of these interns are unpaid, and there are no actual employees who fill these roles. Not to mention, the CEO does a lot of the website's work himself, although he does have some developer interns who work on the back end. I was particularly startled when he said he had logged into my account for me to check to see why my videos weren't getting uploaded correctly. * *The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;* Since I am overqualified, the company receives an obvious benefit from my employment. If there are no actual employees, then I am providing them free labor. * The internship should be of a fixed duration, established prior to the outset of the internship. The duration was not explicitly stated, but rather loosely like "probably the end of August." There have been remarks from the CEO who I have personally spoke with on Skype (which cued me into exactly how small the company is) that he did not have the venture funding to pay the interns until "hopefully after August", and that only some of them would become paid employees. The person who interviewed me made it clear that there was an opportunity for employment around then before I learned that from the CEO. This strikes me as BS because the website has been around since 2013 and there is no reason why they shouldn't have capital at this point. As another note, when I joined the team, I did not have to fill out any paperwork. Beyond my e-mails, Skype call history, and blog posts, there is no definitive proof that I work for the website. I've checked http://sec.gov and they have not filed federally as business. I have no clue if they are even incorporated or not. **My question is**: What are my rights in this situation? Who should I report this to? Could I be entitled to compensation for the amount of time I have currently worked? Topic: Employment Law Answer #1: Yeah, this sounds like the owner/founder is trying to skate labor laws and get free labor. A sea of interns and no real employees is the most blatant violation of those rules I can think of. You'd report this to the DLSE and make an unpaid wage claim. You'd probably be entitled to compensation but there's a decent chance it would be calculated at or near minimum wage. Still, money is money. Also, and I hesitate to ask this but: why on earth did you agree to work for free at a start-up?Answer #2: Internships are supposed to be primarily an educational experience for the benefit of the intern, not free labor for the employer. You're not an intern, you're an unpaid employee entitled to wages and stuff.Answer #3: You can report it to the DLSE. They'll probably decide you and the other interns are entitled to minimum wage. It sounds like the company has no money to pay this, so this may end up with the company going out of business.

KEYSTONE CONSOLIDATDED INDUSTRIES, INC. 5reeway, Suite 1740 Dallas, Texas75240 August 17, 2011 Via EDGAR Securities and Exchange Commission treet NE Washington, D.C.20549 Re:Keystone Consolidated Industries, Inc. Request to Withdraw Registration Statement on Form S-1 File No. 333-174338 Ladies and Gentlemen: Pursuant to Rule 477 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), Keystone Consolidated Industries, Inc. (the “Registrant”) hereby respectfully requests that the Securities and Exchange Commission (the “Commission”) consent to the withdrawal of the Registrant’s Registration Statement on Form S-1 (File No.333-174338), together with all amendments thereto, which the Registrant initially filed with the Commission on May 19, 2011 (the “Registration Statement”). The Registration Statement related to a previously proposed subscription rights offering of the Registrant’s common stock.The Registrant is requesting withdrawal of the Registration Statement because the Registrant has determined not to proceed with the proposed subscription rights offering.The proposed offering contemplated participation by Contran Corporation (“Contran”), the Registrant’s majority stockholder, as a subscribing party to the fullest extent possible.The Registrant’s commencement of and Contran’s participation in the proposed offering was subject to, among other things, the Registrant and Contran reaching agreement on the terms of the proposed offering.Prior to reaching such agreement, Contran has today reported the purchase of an additional 1.55 million shares of the Registrant’s common stock from a third-party stockholder in a private transaction, increasing Contran’s ownership interest in the Registrant to approximately 88%.As a result of such purchase, Contran has indicated to the Registrant that it no longer intends to subscribe for the Registrant’s shares in connection with the proposed offering.Therefore, the Registrant has determined not to proceed with the proposed offering at this time and respectfully requests that the Commission consent to the withdrawal of the Registration Statement on the grounds that doing so would be consistent with the public interest and the protection of investors, as contemplated by Securities Act Rule 477(a). The Registrant confirms that the Registration Statement has not been declared effective and no securities were sold in connection with the offering for which the Registration Statement was filed. The Registrant acknowledges that no refund will be made for fees paid to the Commission in connection with filing of the Registration Statement.The Registrant, however, respectfully requests that all fees paid to the Commission in connection with the filing of the Registration Statement be credited for future use should the Registrant proceed with the filing of a subsequent registration statement meeting the requirements of Rule 457(p) promulgated under the Securities Act. Pursuant to the foregoing, the Registrant hereby respectfully requests that the Commission issue a written order granting the withdrawal of the Registration Statement as soon as possible.Please fax a copy of the order to the Registrant’s legal counsel, Neel Lemon of Baker Botts L.L.P., at (214)661-4954. Should you have any questions regarding this matter or if withdrawal of the Registration Statement will not be granted, please contact the Registrant’s legal counsel, Neel Lemon of Baker Botts L.L.P., at (214) 963-6954. Very truly yours, /s/ Bert E. Downing, Jr. Vice President & Chief Financial Officer cc: Neel Lemon Baker Botts L.L.P.

Title: Lease with girlfriend started 8 days ago. She's assualted me twice in the last 7 days. Tried to break down a locked door last night. I left and now I need to get my things back. (Pennsylvania) Answer #1: > she says if I bring my friends to get my things she'll have us all arrested for criminal trespass. That won't happen. You're a tenant. You have every right to be there. First, call the police and see if they'll send an escort with you. Regardless of whether that happens, pick a time when you know or expect she won't be there. Go and take what you can. Err on the side of caution when deciding what to take. If she does destroy your things, or blocks your access, you'll need to file a lawsuit. You are on the hook for the remainder of the lease. That's unfortunately what a lease is. You can try to negotiate an out with her and the landlord. Answer #2: Okay, first off, you need to call the police. You have been the victim of a serious crime (multiple times, it seems) and the police are best equipped to help you. The police should be able to escort you back to the apartment to at least retrieve your things, if not arrest her outright for assault and battery. I would also contact an attorney about getting a restraining order placed against her, which would indirectly prevent her from occupying the apartment in most jurisdictions.

EXHIBIT 10.7 PREFERRED STOCK PURCHASE AGREEMENT This Preferred Stock Purchase Agreement (the “Stock Purchase Agreement”) is made as of April 27, 2010 (the "Effective Date") by and between Camelot Entertainment Group, Inc., a Delaware corporation (“Camelot”), and Clarity Partners I, LLC, a California limited liability company (“Purchaser”). RECITALS A. Purchaser holds a security interest in all of the tangible and intangible assets (the "Liberation Assets") of Liberation Entertainment, Inc., a Delaware corporation (“Liberation"),pursuant to the terms of approximately $19.27 million in secured debt issued by Liberation to Purchaser(the “Purchaser’s Liberation Debt"). B. Under a general assignment for the benefit of creditors made by Liberation dated as of January 29, 2010 (the “General Assignment”), all right, title and interest in and to the Liberation Assets was transferred to a third party assignee, CMBG Advisors, Inc. ("Seller") and such Seller will act, pursuant to California law, as assignee for the benefit of creditors of Liberation, which creditors include, without limitation Purchaser. C. Pursuant to the termsof that certain Asset Purchase Agreement of even date herewith (the "Asset Purchase Agreement") by and between Camelot, Camelot’s wholly-owned subsidiary, Camelot Film Group, Inc. (“CFG”), and Seller, Camelot will acquire and Seller will sell and assign to CFG all of the Liberation Assets. Among other things, it is a condition to closing of the transactions contemplated by the Asset Purchase Agreement that Purchaser relinquish and withdraw any and all claims (the "Withdrawal of Claims") that it has in the General Assignment arising from and out of Purchaser’s Liberation Debt. D. Purchaser is willing to deliver the Withdrawal of Claims to Seller, and to otherwise facilitate the sale of the Liberation Assets to CFG, in exchange for the issuance by Camelot of $2.5 million of its shares of Class E Convertible Preferred Stock, par value $0.0001 per share (the “Class E Preferred Stock”), as further set forth below. In connection with and as consideration for the delivery of the Withdrawal of Claims to Seller, Camelot has agreed to issue and sell such shares of Class E Preferred Stock to Purchaser, as further set forth below. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, and of the mutual promises, representations, warranties, covenants and conditions set forth in this Stock Purchase Agreement, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1.Purchase and Sale of Preferred Stock. 1.1Certificate of Designation.Camelot shall adopt and file with the Secretary of State of the State of Delaware on or before the Closing, as defined below, the Certificate of Designation of Class E Preferred Stock in the form attached hereto as ExhibitA (the “Certificate of Designation”). 1 1.2Sale and Issuance of Class E Preferred Stock.Subject to the terms and conditions of this Stock Purchase Agreement, in exchange for the delivery by Purchaser of the Withdrawal of Claims to Seller at the Closing, Camelot agrees to sell and issue to Purchaser Two Million Five Hundred Thousand Dollars ($2,500,000.00) of Class E Preferred Stock that is convertible into shares of Camelot Common Stock at the per share purchase price in accordance with Section 6.3 below (the "Issued Shares"). 1.3As further consideration for the delivery by Purchaser of the Withdrawal of Claims to Seller at the Closing, Camelot also agrees to the following with respect to the animated television series entitled “Wolverine” (collectively “Wolverine”): if Camelot retains the DVD and television distribution rights to Wolverine (the “Rights”) on or before April 26,2011 (the "Negotiation Period"), then Camelot shall pay Purchaser the sum of Three Hundred Fifty Thousand Dollars ($350,000.00) either in cash via the wire transfer of immediately available funds or in freely tradable shares of Common Stock, valued at the volume weighted average price per share of Common Stock over the 30 day trading period immediately prior to the date that Camelot secures the Rights (the "Wolverine Shares"), in Camelot's sole discretion, provided that the Negotiation Period shall be automatically extended for three (3) months if Camelot is in active negotiations to retain the Rights at the expiration of the Negotiation Period. 1.4 Notwithstanding its obligations pursuant to Section 1.3 above, Camelot will also pay Purchaser, in cash, sixty percent (60%) of the Net Wolverine Revenue received by Camelot ("Purchaser's Percentage") during the Negotiation Period, as extended, until Camelot has retained the Rights, with such payments to be made within three (3) business days of Camelot's receipt of such revenue. For purposes of this Section 1.4, "Net Wolverine Revenue" shall mean all gross revenue derived from the Wolverine assets less Camelot's documented out-of-pocket expenses incurred in connection with the management of the Wolverine, which expenses shall include Camelot's payments to Seller. If Camelot does not retain the Rights during theNegotiation Period, as extended hereunder, then Camelot will continue to pay Purchaser an amount equal to Purchaser's Percentage either in cash via the wire transfer of immediately available funds or in freely tradable shares of Common Stock, valued at the volume weighted average price per share of Common Stock over the 30 day trading period immediately prior to the date of delivery to Purchaser, in Camelot's sole discretion, untilPurchaser has received an aggregate Three Hundred Fifty Thousand Dollars ($350,000.00). 1.5Closing; Delivery. (a)The purchase and sale of the Issued Shares shall take place remotely via the electronic exchange of documents and signatures on the date hereof or at such other time and place as Camelot and Purchaser mutually agree upon, orally or in writing (which time and place are designated as the “Closing”). (b)At the Closing, Camelot shall deliver to Purchaser acknowledgement and confirmation from Camelot’s transfer agent that the Issued Shares have been authorized and ready for delivery to Purchaser on demand. 2.Representations and Warranties of Camelot.Camelot hereby represents and warrants to Purchaser that, except as set forth on the Schedule of Exceptions attached as Exhibit C hereto (the “Schedule of Exceptions”), the following are true and correct in all respects as of the Closing: 2 2.1Organization, Good Standing and QualificationCamelot 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 presently conducted and as currently proposed to be conducted.Camelot 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 business, assets (including intangible assets), liabilities, financial condition, property, or results of operation of Camelot (a "Material Adverse Effect"). 2.2CapitalizationUpon the filing of the Certificate of Designation and immediately prior to the Closing, the authorized and outstanding capital of Camelot will consist of: (a)100,000,000 authorized shares of Preferred Stock, of which50,443,032 are issued and outstanding, including 16,147,511 of Class A Convertible Preferred shares; 27,144,021 of Class B Convertible Preferred shares; and 7,151,500 of Class C Convertible Preferred shares. All of the outstanding shares of Preferred Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws. (b)19,900,000,000 authorized shares of Common Stock, par value $0.0001 per share (the "Common Stock"), of which 8,448,116,075 shares are issued, and 8,098,116,075 are issued and outstanding. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities laws. The Common Stock constitutes the only class of equity securities of Camelot or any of its subsidiaries registered or required to be registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (c)An aggregate of 3,000,000,000 shares of Common Stock reserved for issuance to officers, directors, employees and consultants of Camelot pursuant to its 2009 Stock Option/Stock Issuance Plan, duly adopted by Camelot’s Board of Directors and approved by Camelot’s stockholders (the “Stock Plan”). Of such reserved shares of Common Stock, 2,795,000,000 shares have been issued pursuant to options and are outstanding, and 205,000,000 remain available for issuance under the Stock Plan. (d)Except as set forth above,as of the date hereof, there are outstanding (i)no shares of capital stock or other voting securities of Camelot, (ii)no securities of Camelot or its subsidiaries convertible into or exchangeable for shares of capital stock, or voting securities of Camelot, (iii)no options or other rights to acquire from Camelot or its subsidiaries and no obligations of Camelot or its subsidiaries to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of Camelot, and (iv) no equity equivalent interests in the ownership or earnings of Camelot or its subsidiaries or other similar rights (collectively, "Camelot Securities").As of the date hereof, there are no outstanding obligations of Camelot or any of its subsidiaries to repurchase, redeem or otherwise acquire any Camelot Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which Camelot is a party or by which it is bound relating to the voting of any shares of capital stock of Camelot. 3 (e)OTC Trading. Once certificates representing shares of Common Stock issuable to Purchaser on its exercise of Conversion Rights and/or issuable as Additional Consideration, Gross-Up Shares, as each such term is defined below, or the Wolverine Shares are delivered thereto, such shares Common Stock will be listed on the Over the Counter Bulletin Board (“OTCBB”), or a national exchange, and subject to the rules and regulations of the Securities Act of 1933, as amended (the “Securities Act”),will otherwise be eligible for either immediate sale by Purchaser without restriction as a result of an effective registration statement, or be eligible for sale following applicable holding periods under Rule 144 of the Securities Act. 2.3Reserved 2.4AuthorizationAll corporate action on the part of Camelot, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Stock Purchase Agreement and the Asset Purchase Agreement (sometimes collectively, the "Transaction Agreements"), the performance of all obligations of Camelot hereunder and thereunder and the authorization, issuance and delivery of the Issued Shares, the Additional Consideration, the Gross-Up Shares, the Wolverine Shares and the Common Stock issuable upon conversion thereof (sometimes collectively, the “Securities”) has been taken or will be taken prior to the Closing, and the TransactionAgreements, when executed and delivered by Camelot, shall constitute valid and legally binding obligations of Camelot, enforceable against Camelot in accordance with their respective terms except (i)as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and (ii)as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. 2.5Valid Issuance of SecuritiesThe Issued Shares, when issued, sold and delivered in accordance with the terms of this Stock Purchase Agreement for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser.The Additional Consideration, if issued, sold and delivered in accordance with the terms of this Stock Purchase Agreement for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser. The Gross-Up Shares, if issued, sold and delivered in accordance with the terms of this Stock Purchase Agreement for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser. The Wolverine Shares, if issued, sold and delivered in accordance with the terms of this Stock Purchase Agreement, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under applicable state and federal securities laws and liens or encumbrances created by or imposed by the Purchaser.Based in part upon the representations of the Purchaser in Section 3 of this Stock Purchase Agreement, the Issued Shares and, if issued, the Additional Consideration, the Gross-Up Shares and the Wolverine Shares (and the Common Stock issuable upon conversion of thereof, as the case may be) will be issued in compliance with all applicable federal and state securities laws.The Common Stock issuable upon conversion of the Issued Shares, the Additional Consideration, the Gross-Up Shares, and the Wolverine Shares, as the case may be, has been reserved for issuance, and upon issuance in accordance with the terms of the Certificate of Designation, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under applicable federal and state securities laws and liens or encumbrances created by or imposed by the Purchaser.The sale of each of the Issued Shares and, if issued, the Additional Consideration, the Gross-Up Shares and the Wolverine Shares is not, and the subsequent conversion of any and all such shares will not be, subject to any preemptive rights, rights of first refusal or similar rights which have not been properly waived or complied with. 4 2.6Governmental Consents and FilingsExcept as required by the Securities Act, assuming the accuracy of the representations made by Purchaser in Section 3 of this Stock Purchase Agreement, no consent, approval, order or authorization of, qualification, designation, declaration or filing with, any federal, state or local governmental authority is required on the part of Camelot in connection with the consummation of the transactions contemplated by this Stock Purchase Agreement. 2.7LitigationThere is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or, to Camelot’s knowledge, currently threatened (i) against Camelot or any officer, director or key employee of Camelot or (ii) that questions the validity of the Transaction Agreements or the right of Camelot to enter into them, or to consummate the transactions contemplated by the Transaction Agreements.Neither Camelot nor any of its officers, directors or key employees is a party or is named as subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality.There is no action, suit, proceeding or investigation by Camelot pending or which Camelot intends to initiate.The foregoing includes, without limitation, actions, suits, proceedings or investigations pending or threatened in writing (or any basis therefor known to Camelot) involving the prior employment of any of Camelot’s employees, their use in connection with Camelot’s business, or any information or techniques allegedly proprietary to any of their former employers, or their obligations under any agreements with prior employers. 2.8Reports and Financial Statements (a)Camelot has filed all required forms, reports and documents (the "Camelot SEC Reports") with the Securities and Exchange Commission (“SEC” or “Commission”) since inception, each of which complied at the time of filing in all material respects with all applicable requirements of the Securities Act and the Exchange Act, each as in effect on the date such form, report or document was filed.When filed, no Camelot SEC Report contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein in light of the circumstances under which they were made not misleading, except to the extent superseded by a Camelot SEC Report filed subsequently and prior to the date thereof.The consolidated financial statements of Camelot included in the Camelot SEC Reports (the “Camelot Financial Statements”) fairly present in conformity in all material respects with generally accepted accounting principles applied on a consistent basis (except as may be indicated in the notes thereto), the consolidated financial position of Camelot and its consolidated subsidiaries as of the dates thereof and their consolidated results of operations and changes in financial position for the periods then ended.Camelot maintains accounting controls and systems which are sufficient to provide reasonable assurances that (i)all transactions are executed in accordance with management’s general or specific authorization, (ii)all transactions are recorded as necessary to permit the accurate preparation of financial statements in conformity with generally accepted accounting principles and to maintain proper accountability for items, (iii)access to their property and assets is permitted only in accordance with management’s general or specific authorization, and (iv)the recorded accountability for items is compared with the actual levels at reasonable intervals and appropriate action is taken with respect to any differences. 5 2.9Compliance with Other Instruments. Camelot is not, and will not be as of the Closing, in violation or default (i) of any provisions of its Restated Certificate or Incorporation or Bylaws, (ii) of any instrument, judgment, order, writ or decree, (iii) under any note, indenture or mortgage, or (iv) under any lease, agreement, contract or purchase order to which it is a party or by which it is bound or of any provision of federal or state statute, rule or regulation applicable to Camelot.The execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated hereby or thereby will not result in any such violation or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, order, writ, decree or contract or an event which results in the creation of any lien, charge or encumbrance upon any assets of Camelot or the suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license, authorization or approval applicable to Camelot, its prospects, business or operations, or any of its assets or properties. 2.10Title to Property and AssetsExcept as disclosed in Exhibit 2.10 attached hereto, Camelot owns its property and assets free and clear of all mortgages, deeds of trust, liens, loans and encumbrances, except for statutory liens for the payment of current taxes that are not yet delinquent and encumbrances and liens that arise inthe ordinary course of business and do not materially impair Camelot’s ownership or use of such property or assets.With respect to the property and assets it leases, Camelot is in material compliance with such leases and, to its knowledge, holds a valid leasehold interest free of any liens, claims or encumbrances other than to the lessors of such property or assets. 2.11ChangesSince the date of the Camelot Financial Statements, there has not been: (a)any change in the assets, liabilities, financial condition or operating results of Camelot from that reflected in the Financial Statements, except changes in the ordinary course of business that have not caused, in the aggregate, Material Adverse Effect; (b)any damage, destruction or loss, whether or not covered by insurance, that constitutes a Material Adverse Effect; (c)any waiver or compromise by Camelot of a valuable right or of a material debt owed to it; 6 (d)any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by Camelot, except in the ordinary course of business and the satisfaction or discharge of which would not have a Material Adverse Effect; (e)any material change to a material contract or agreement by which Camelot or any of its assets is bound or subject, except for such changes in the ordinary course of business; (f)any mortgage, pledge, transfer of a security interest in, or lien, created by Camelot, with respect to any of its material properties or assets, except liens for taxes not yet due or payable and liens that arise in the ordinary course of business and do not materially impair Camelot’s ownership or use of such property or assets; (g)any notice received that any major customer or supplier has terminated ormaterially reduced or threatened to terminate or materially reduce its purchases from or provision of products or services to Camelot; (h)to Camelot’s knowledge, any other event or condition of any character, other than events affecting the economy or Camelot’s industry generally, that could reasonably be expected to result in a Material Adverse Effect; or (i)any arrangement or commitment by Camelot to do any of the things described in this Section2.11. 2.12Taxes.Camelot has duly and timely filed all tax returns and reports (including information returns and reports) as required by law.These returns and reports are true and correct in all material respects.Camelot has paid all taxes and other assessments due, except those contested by it in good faith with respect to which (i) an adequate reserve therefor has been established and is maintained in accordance with generally accepted accounting principles and (ii) there has been no action to foreclose a lien on Camelot’s property as a result of such unpaid taxes.Camelot has not made any election pursuant to the Internal Revenue Code of 1986, as amended that would have a Material Adverse Effect.Camelot has never had any tax deficiency proposed or assessed against it and has not executed any waiver of any statute of limitations on the assessment or collection of any tax or governmental charge.None of Camelot's federal income tax returns and none of its state income or franchise tax or sales or use tax returns have ever been audited by governmental authorities.Since Camelot's inception, Camelot has not incurred any taxes, assessments or governmental charges other than in the ordinary course of business and Camelot has made adequate provisions on its books of account for all taxes, assessments and governmental charges with respect to its business, properties and operations.Camelot has withheld or collected from each payment made to each of its employees, the amount of all taxes (including, but not limited to, federal income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be withheld or collected therefrom, and has paid the same to the proper tax receiving officers or authorized depositories. 2.13Disclosure Camelot has made available to Purchaser all the information reasonably available to Camelot that Purchaser has requested for deciding whether to acquire the Issued Shares.No representation or warranty of Camelot contained in the Stock Purchase Agreement, the other Transaction Agreements or in any certificate, instrument or document provided to Purchaser in connection with the transactions contemplated hereby and thereby contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which such statements were made. 7 3.Representations and Warranties of Purchaser Purchaser represents and warrants to Camelot, as of the Closing that: 3.1Authorization Purchaser has full power and authority to enter into the this Stock Purchase Agreement, which, when executed and delivered by Purchaser, will constitute valid and legally binding obligations of Purchaser, enforceable in accordance with their terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. 3.2Purchase Entirely for Own Account This Stock Purchase Agreement is made with Purchaser in reliance upon Purchaser’s representations to Camelot, that the Securities to be acquired by Purchaser hereunder will be acquired for investment for Purchaser’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same, provided that, at the Closing, Purchaser will assign shares of Class E Preferred Stock valued at $95,000, along with all of the rights, benefits and obligations attributable thereto, to Jay Boberg, formerly the Chief Executive Officer of Liberation.By executing this Stock Purchase Agreement, Purchaser further represents that it does not presently have any contract, undertaking, agreement or arrangement to sell, transfer or grant participations to any third party, with respect to any such Securities. 3.3Disclosure of Information Purchaser has had an opportunity to ask questions and receive answers from Camelot regarding the terms and conditions of the offering of the Issued Shares, the Additional Consideration and the Gross-Up Shares, each as hereinafter defined, as the case may be, and the business, properties, prospects and financial condition of Camelot.The foregoing, however, does not limit or modify the representations and warranties of Camelot in Section 2 of this Stock Purchase Agreement or the right of Purchaser to rely on such representations and warranties. 3.4Restricted Securities Purchaser understands that the Securities will be characterized as “restricted securities” under the federal securities laws, inasmuch as they are being acquired from Camelot in a transaction not involving a public offering, and that under such laws and applicable regulations suchSecurities may not be resold without registration under the Securities Act, except in certain limited circumstances.In this connection, Purchaser represents that it is familiar with Rule 144 promulgated under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act. Purchaser acknowledges that Camelot has no obligation to register or qualify the Securities for resale, except as set forth below.Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Securities, and on requirements relating to Camelot that are outside Purchaser’s control, and which Camelot is under no obligation and may not be able to satisfy. 8 3.5Accredited Investor Status Purchaser is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. 3.6No Brokers Neither Purchaser, nor any of its officers, employees, agents, directors, stockholders or partners has engaged the services of a broker, investment banker or finder to contact any potential investor nor has Purchaser or any of Purchaser’s officers, employees, agents, directors, stockholders or partners, agreed to pay any commission, fee or other remuneration to any third party to solicit or contact any potential investor, provided that Purchaser has agreed to pay Gordon Smith in connection with the transactions contemplated by this Stock Purchase Agreement. 4.Conditions of the Purchaser’s Obligations at Closing The obligations of Purchaser to deliver the Withdrawal of Claims and to otherwise purchase the Issued Shares, the Consideration, the Gross-Up Shares and the Wolverine Shares, as the case may be, under this Stock Purchase Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived: 4.1Representations and Warranties The representations and warranties of Camelot contained in Section2 shall be true and correct in all material respects on and as of such Closing. 4.2Performance Camelot shall have performed and complied with all covenants, agreements, obligations and conditions contained in this Stock Purchase Agreement that are required to be performed or complied with by it on or before the Closing. 4.3Compliance Certificate The Chief Executive Officer or Chief Operating Officer of Camelot shall deliver to Purchaser at the Closing a certificate certifying that the conditions specified in Sections4.1 and 4.2 have been fulfilled. 4.4Qualifications All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Stock Purchase Agreement shall be obtained and effective as of the Closing. 4.5Opinion of Company Counsel The Purchasers shall have received from Christopher P. Flannery, securities counsel for Camelot, an opinion, dated as of such Closing, in substantially the form ofExhibitD. 4.6Certificateof Designation.Camelot shall have filed the Certificate of Designation with the Secretary of State of Delaware on or prior to the Closing, which shall continue to be in full force and effect as of the Closing. 9 4.7Secretary’s Certificate The Secretary of Camelot shall have delivered to Purchaser at the Closing a certificate certifying (i) the Certificate of Designation, (ii) the Bylaws of Camelot, (iii) resolutions of the Board of Directors of Company approving the Transaction Stock Purchase Agreements and the transactions contemplated hereby and thereby, and, if appropriate, (iv) resolutions of the stockholders of Company approving the Certificate of Designation and the other transactions contemplated by the Transaction Stock Purchase Agreements to the extent applicable. 4.8Asset Purchase Agreement.The transactions contemplated by the Asset Purchase Agreement shall have been consummated in accordance with the terms thereof. 4.9Proceedings and Documents All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to Purchaser, and Purchaser (or its counsel) shall have received all such counterpart original and certified or other copies of such documents as reasonably requested.Such documents shall include good standing certificates from Camelot’s state of incorporation and any state in which Camelot is qualified to do business. 5.Conditions of Camelot’s Obligations at Closing The obligations of Camelot to Purchaser under this Stock Purchase Agreement are subject to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived: 5.1Representations and Warranties The representations and warranties of Purchaser contained in Section3 shall be true and correct in all material respects on and as of such Closing. 5.2Performance All covenants, agreements and conditions contained in this Stock Purchase Agreement to be performed by Purchaser on or prior to such Closing shall have been performed or complied with in all material respects. 5.3Qualifications All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance and sale of the Shares pursuant to this Stock Purchase Agreement shall be obtained and effective as of the Closing. 6.Covenants 6.1Reports Under the Exchange Act.With a view to making available to Purchaser the benefits of Rule144 promulgated under the Securities Act and any other rule or regulation of the SEC that may at any time permit Purchaser to sell securities of Camelot to the public without registration or pursuant to a registration on FormS-1, Camelot agrees to: (a)make and keep current public information available, as those terms are understood and defined in SEC Rule144, at all times after the first registration statement filed by Camelot for the offering of its securities to the public so long as Camelot remains subject to the periodic reporting requirements under Sections13 or 15(d) of the Exchange Act; 10 (b)take such action, including the voluntary registration of its Common Stock under Section12 of the Exchange Act, as is necessary to enable Purchaser to utilize FormS-3 for the sale of its shares of Common Stock; (c)file with the SEC in a timely manner all reports and other documents required of Camelot under the Securities Act and the Exchange Act; and (d)furnish to Purchaser upon request (i)a written statement by Camelot that it has complied with the reporting requirements of SEC Rule144, the Securities Act and the Exchange Act, or that it qualifies as a registrant whose securities may be resold pursuant to FormS-3, (ii)a copy of the most recent annual or quarterly report of Camelot and such other reports and documents so filed by Camelot, and (iii)such other information as may be reasonably requested in availing Purchaser of any rule or regulation of the SEC which permits the selling of any such securities without registration or pursuant to such form. 6.2Issuance of Additional Consideration. On or before April 30, 2011, if (a) Camelot has not completed one or more of the acquisitions described on Exhibit E hereto (the "Potential Acquisitions") or one or more transactions substantially similar to the Potential Acquisitions, (b) the fair market value of the Issued Shares received by Purchaser in connection with the consummation of the transactions contemplated by this Stock Purchase Agreement does not equal or exceed $3,125,000 as of such date or (c) Camelot has not completed an additional financing that results in net proceeds to Camelot of at least Ten Million Dollars ($10,000,000.00) then, commencing onMay1, 2011 (the "Additional Issuance Date") and, so long as none of the transactions contemplated by subsections (a), (b) or (c) above has been satisfied,on the first day of each of the four (4) consecutive months thereafter, Camelot shall issue to Purchaser $100,000 in each such month for a total of $500,000 as the Additional Consideration.For purposes of this Section 6.2, "Additional Consideration" shall mean that number of shares of Class E Preferred Stock, valued at the greater of (x) the fair market value thereof as of the Additional Issuance Date and (y) the Class E Issuance Price, that equals an aggregate of $500,000. 6.3Conversion Rights. During each and every quarterly period in the three (3) year period following the Closing Date, commencing in the quarter ended June 30, 2010 (each, a "Quarterly Conversion Period"),Purchaser shall have the right to convert (each, a "Conversion Right") that number of shares of Class E Preferred Stock equal to $208,333 of fully registered and freely tradable shares of Common Stock, or (b) if an effective registration statement relating to shares of Common Stock is not then on file with the Commission, then restrictedshares of Common Stock eligible for sale following applicable holding periods under Rule 144 of the Securities Act, in either case, with such conversion price equal to the quarterly volume weighted average price per share of Common Stockduring the Quarterly Conversion Period ended June 30, 2010 (the "Conversion Price"). Notwithstanding anything containedherein to the contrary, if any of the Additional Consideration, Gross-Up Shares or Wolverine Shares are issued pursuant to the terms of this Agreement, then, beginning with the Quarterly Conversion Period ending March 31, 2011 and for each Quarterly Conversion Period thereafter, a pro rata portion of such Additional Consideration, Gross-Up Shares and Wolverine Shares shall be subject to the ConversionRights granted hereunder. Purchaser understands and acknowledges that any conversion that results in Purchaser’s Common Stock holdings exceeding 4.99% of the issued and outstanding shares of Common Stock at the time of conversion shall mandate public filings with the Commission by Purchaser. 11 6.4Gross-Up Shares. Following the conversion into shares of Common Stock of all shares of Class E Preferred Stock held by Purchaser, if the fair market value of all such sharesof Common Stock received by Purchaser in connection with the exercise of all Conversion Rights held thereby, excluding any Additional Consideration and Wolverine Shares otherwise received by Purchaser pursuant to the terms of this Agreement, does not equal at least $2,500,000, then on or before April 10, 2013, Camelot shall issue and deliver to Purchaser that number of shares of Common Stock (the “Gross-Up Shares”) determined by (a) calculating the amount equal to (i) $2,500,000 less (ii) the value of the consideration actually received by Purchaser following such conversion, and dividing such amount by (b) the Conversion Price as of March 31, 2013. 6.5Expiration of Conversion Rights; Sale of Preferred Stock. Purchaser agrees that, to the extent it has not exercised all Conversion Rights on or prior to April 15, 2013, all such unexercised Conversion Rights shall expire. Following such date, if Purchaser elects to sell any shares of Class E Preferred Stock not otherwise converted into Common Stock it shall first deliver written notice of such intention to Camelot (the "Preferred Stock Sale Notice"), which notice shall include the number of shares of Class E Preferred Stock that Purchase wishes to sell (the "Offered Shares"). Within ten (10) calendar days after its receipt of the Preferred Stock Sale Notice (the "Preferred Stock Purchase Period"), Camelot shall have the right to purchase all, but not less than all, of the Offered Shares at a per share price equal to the volume weighted average price per share of Common Stock for the thirty (30) trading days prior to the date of Preferred Stock Sale Notice (the "Preferred Stock Purchase Price"). Camelot may exercise such purchase right prior to the of the Preferred Stock Purchase Period via the delivery of a wire transfer in immediately available funds to an account designated by Purchaser in an amount equal to the Preferred Stock Purchase Price multiplied by the Offered Shares. Should Camelot not elect to purchase the Offered Shares during the Preferred Stock Purchase Period, Purchaser shall be free to dispose of such Offered Shares in one or more transactions on terms and conditions acceptable to Purchaser, in its sole discretion. 6.6Piggyback Registration. If Camelot proposes to register on its own behalf or on behalf of its current principal management stockholders (the "Management Holders") any of its stock under the Securities Act in connection with the public offering of such securities for cash (other than a registration on Form S-8 or any successor form relating solely to the sale of securities to participants in a Company stock plan or a transaction covered by Rule145 under the Securities Act), Camelot shall, at such time, promptly give Purchaser written notice of such registration.Upon the written request of Purchaser given within twenty (20) days after mailing of such notice by Camelot in accordance with Section7.6 below, Camelot shall cause to be registered under the Securities Act all of the shares of Common Stock issuable on conversion of shares of Class E Preferred Stock that Purchaser has requested to be registered (the "Registrable Securities"). In connection with any offering involving an underwriting of shares of Common Stock, if the total amount of securities, including Registrable Securities, requested by the Management Holders and Purchaser exceeds the amount of securities that the underwriters determine in their sole discretion is compatible with the success of the offering, then Camelot shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters determine in their sole discretion will not jeopardize the success of the offering (the securities so included to be apportioned pro rata among Purchaser and the Management Holders according to the total amount of securities entitled to be included therein owned by each such selling holder). 12 6.7Securities Act Filing; Registration of Shares; Repurchase of Shares. Promptly following the Closing Camelot shall make and all filings required pursuant to all applicable federal and state securities laws, including without limitation, those set forth in the Securities Act and the Exchange Act. In that regard, Camelot shall use its best efforts not to identify Purchaser by name in any such filings and shall use its best efforts to redact all references to Purchaser in any exhibits attached thereto, subject to filing requirements of the Commission. Additionally, as soon as possible following the Closing, Camelot shall prepare and file with the Commission a registration statement on Form S-1 relating to the registration of sufficient shares of Common Stock so as to allow the conversion of the Issued Shares, Additional Consideration, Gross-Up Shares and Wolverine Shares, and, thereafter, shall use its best efforts to have such registration statement declared effective within one hundred eighty (180) days thereafter. Notwithstanding anything contained herein to the contrary, prior to the effectiveness of such registration statement, Camelot shall use it best efforts to arrange a purchase of that number of shares of Class E Preferred Stock held by Purchaser equal to $125,000. 6.8Indemnification. Camelot hereby agrees to indemnify and hold Purchaser, its partners, members, owners, officers, directors, agents, attorneys, successors, and assigns, harmless from any and all liability, loss, damage, claim, expense, cost, fine, fee, penalty, obligation or injury including, without limitation, those resulting from any and all actions, suits, proceedings, demands, assessments, judgments, award or arbitration, together with reasonable costs and expenses including the reasonable outside attorneys’ fees and other legal costs and expenses relating thereto any material breach by Camelot of any representation, warranty, covenant, condition or other obligation of Camelot hereunder. 6.9Wolverine Assets. Camelot shall use its best efforts to (a) secure the Rights prior to the end of the Negotiation Period and (b) to exploit the Rights in a commercially reasonable manner. 7.Miscellaneous 7.1Survival of Warranties Unless otherwise set forth in this Stock Purchase Agreement, the warranties, representations and covenants of Camelot and Purchaser contained in or made pursuant to this Stock Purchase Agreement shall survive the execution and delivery of this Stock Purchase Agreement and the Closing and shall in no way be affected or limited by any investigation of the subject matter thereof made by or on behalf of Purchaser or Camelot. 7.2Successors and Assigns The terms and conditions of this Stock Purchase Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, including transferees of any Securities.Nothing in this Stock Purchase Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, orliabilities under or by reason of this Stock Purchase Agreement, except as expressly provided in this Stock Purchase Agreement. 13 7.3Governing Law This Stock Purchase Agreement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to its principles of conflicts of laws. 7.4Counterparts This Stock Purchase Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.This Stock Purchase Agreement and the other Transaction Stock Purchase Agreements may also be executed and delivered by facsimile or other electronic delivery of signature. 7.5Titles and Subtitles The titles and subtitles used in this Stock Purchase Agreement are used for convenience only and are not tobe considered in construing or interpreting this Stock Purchase Agreement. 7.6Notices All notices or other communications required or permitted hereunder shall be in writing and faxed, emailed, mailed or delivered to each party as follows at the address, facsimile number or email address set forth on the signature page or exhibits hereto, or at such other address, number or email address as such party shall have furnished in writing.All notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being delivered by facsimile or email (with receipt of appropriate confirmation), (iv) one business day after being deposited with an overnight courier service of recognized standing; or (v) four days after being deposited in the US mail, first class with postage prepaid.If notice is given Camelot, a copy shall be provided to Camelot Entertainment Group, Inc., 8001 Irvine Center Drive, Suite 400, Irvine, CA 92618. If notice is given to Clarity, a copy shall be provided to Strategic Law Partners, LLP, 500 S. Grand Avenue, Suite 2050, Los Angeles, CA 90071, Attn: Timothy F. Silvestre. 7.7Finder’s Fee Each party represents that, other than as noted in Sections 2.14 and 3.6 above, it neither is nor will be obligated for any finder’s fee or commission in connection with this transaction.Purchaser agrees to indemnify and to hold harmless Camelot from any liability for any commission or compensation in the nature of a finder’s fee arising out of this transaction (andthe costs and expenses of defending against such liability orasserted liability) for which Purchaser or any of its officers, employees, or representatives is responsible.Camelot agrees to indemnify and hold harmless Purchaser from any liability for any commission or compensation inthe nature of a finder’s or broker’s fee arising out of this transaction (and the costs and expenses of defending against such liability or asserted liability) for which Camelot or any of its officers, employees or representatives is responsible. 7.8Fees and Expenses Each party to this Stock Purchase Agreement shall be responsible for all fees and expenses incurred thereby, including without limitation the fees of its legal counsel. 7.9Attorney’s Fees If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of the Transaction Agreements, the prevailing party shall be entitled to recover reasonable and necessary attorneys’ fees, costs and disbursements in addition to any other relief to which such party may be entitled. 14 7.10Amendments and Waivers This Stock Purchase Agreement may be amended or waived only with the prior written consent of each of Camelot and Purchaser. 7.11Severability If one or more provisions of this Stock Purchase Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Stock Purchase Agreement and the balance of the Stock Purchase Agreement shall be interpreted as though such provision were so excluded and shall be enforceable in accordance with its terms. 7.12Delays or Omissions No delay or omission to exercise any right, power or remedy accruing to any party under this Stock Purchase Agreement, upon any breach or default of any other party under this Stock Purchase Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring.Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Stock Purchase Agreement, or any waiver on the part of any party of any provisions or conditions of this Stock Purchase Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing.All remedies, either under this Stock Purchase Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative. 7.13Public Announcements.Subject to any requirement of applicable law, all public announcements or similar publicity with respect to this Stock Purchase Agreement or the Asset Purchase Agreement shall be made or issued only with the prior written consent of both Camelot and Purchaser, which consent shall not be unreasonably withheld.In the event that any such public announcement or publicity is required by in connection with Camelot’s reporting obligations to the SEC, the parties hereto will consult prior to the making thereof and use reasonable efforts to obtain approval from the other party regarding the content thereof; provided, however, that Camelot shall not take the position that any such public filing is required unless determined in good faith by Camelot’s Chief Executive Officer and/or Camelot’s Board of Directors after consultation with Camelot’s outside legal counsel.Prior to making any announcement or public filing required by law regarding this Stock Purchase Agreement or the Asset Purchase Agreement Camelot shall provide a copy thereof to Purchaser and shall provide Purchaser with a reasonable opportunity to review such filing and consult with Camelot regarding its contents.Camelot acknowledges that the execution of this Stock Purchase Agreement will obligate Camelot to a current report on Form 8-K with the Commission and issue a press release, which shall be subject to the prior approval of Purchaser pursuant to the Commission’s rules and regulations, including, but not limited to, fair disclosure provisions arising under the Exchange Act.In addition, Camelot shall be solely responsible to make any filing, declaration or registration with, or to obtain any permit, authorization, consent or approval of the Commission in each case, which may be required in connection with the Stock Purchase Agreement and/or the Asset Purchase Agreement. 7.14Entire Agreement This Stock Purchase Agreement and the documents referred to herein, including, without limitation, the other Transaction Agreements, constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements relating to the subject matter hereof existing between the parties hereto, including without limitation that certain Binding Letter of Intent dated as of March 15, 2010, are expressly canceled. 15 IN WITNESS WHEREOF, the parties have executed this Preferred Stock Purchase Stock Purchase Agreement as of the date first written above. CAMELOT Camelot Entertainment Group, Inc. By: /s/Rober P. Atwell Robert P. Atwell, President Camelot Film Group, Inc. By:/s/ Rober P. Atwell Robert P. Atwell, President Address: 8001 Irvine Center Drive, Suite 400 Irvine, CA 92618 Clarity Partners I, LLC By: Its: Address: 100 North Crescent Drive, Ste. 300 Beverly Hills, CA 90210 16 Acceptance of Assignment: In connection with the assignment of shares of Class E Preferred Stock to the undersigned by Purchaser, the undersigned hereby confirms that it will be bound by and subject to the terms and conditions of this Agreement that are applicable to such shares, and that the representations and warranties set forth in Section 3 of this Agreement are true and correct with respect to the undersigned. Boberg Living Trust U/A DTD 01/31/1997 By: /s/ Jay Boberg Jay Boberg, Trustee By: /s/ Alison Cooper Alison Cooper, Trustee 17 EXHIBITS ExhibitA -Form of Certificate of Designation ExhibitB -Issued Shares ExhibitC -Schedule of Exceptions Exhibit D -Legal Opinion of Counsel to Camelot Exhibit E -Potential Acquisitions 18 EXHIBIT A FORM OF CERTIFICATE OF DETERMINATION 19 EXHIBIT B ISSUED SHARES PurchaserDollar Value of Shares# of Shares Clarity Partners, L.P.$2,153,000 Clarity Advisors, L.P.$317,150 Clarity Associates, L.P.$29,850 20 EXHIBIT C SCHEDULE OF EXCEPTIONS Section 2.2. Employee and Consultant Agreements and Contracts JMJ Financial Agreements and Contracts AJW Partners, New Millennium, AJW Offshore and AJW Qualified and related party Agreements andContracts Hope Capital and Mazuma Agreements and Contracts Ayuda Funding Agreements and Contracts Incentive Capital Agreements and Contracts The Atwell Group Agreements and Contracts 21 EXHIBIT D FORM OF LEGAL OPINION OF COUNSEL TO CAMELOT 22 EXHIBIT E POTENTIAL ACQUISITIONS Cineworks Digital Studios, Inc. Revelation Films, ltd. barnholtz entertainment, inc. 23

Exhibit 10.13 Attached is the Amended and Restated Limited Liability Company Agreement of INK Acquisition II LLC, dated as of October 27, 2011, made by and between CRE-INK Member II, Inc. (“Cerberus”) and Chatham TRS Holding Inc. The joint venture between affiliates of Cerberus and affiliates of Chatham Lodging Trust was memorialized in seven (7) separate limited liability company agreements listed below, each in substantially the same form as the attached agreement:     •   Second Amended and Restated Limited Liability Company Agreement of INK Acquisition LLC, dated as of October 27, 2011, made by and between CRE-INK REIT Member LLC and Chatham Lodging LP.     •   Amended and Restated Limited Liability Company Agreement of INK Acquisition II LLC, dated as of October 27, 2011, made by and between CRE-INK Member II, Inc. and Chatham TRS Holding Inc. (see attached).     •   Amended and Restated Limited Liability Company Agreement of INK Acquisition III LLC, dated as of October 27, 2011, made by and between CRE-INK TRS Holding Inc. and Chatham TRS Holding Inc.     •   Limited Liability Company Agreement of INK Acquisition IV LLC, dated as of October 27, 2011, made by and between CRE-INK REIT Member IV LLC and Chatham Lodging LP.     •   Limited Liability Company Agreement of INK Acquisition V LLC, dated as of October 27, 2011, made by and between CRE-INK REIT Member V LLC and Chatham Lodging LP.     •   Limited Liability Company Agreement of INK Acquisition VI LLC, dated as of October 27, 2011, made by and between CRE-INK REIT Member VI LLC and Chatham Lodging LP.     •   Limited Liability Company Agreement of INK Acquisition VII LLC, dated as of October 27, 2011, made by and between CRE-INK REIT Member VII LLC and Chatham Lodging LP. Other than with respect to the parties thereto, the agreements listed above are substantially identical to this exhibit and are not being filed as separate exhibits pursuant to Rule 12b-31 promulgated under the Securities Exchange Act of 1934, as amended.     AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF INK ACQUISITION II LLC       Table of Contents        Page   ARTICLE I. GENERAL PROVISIONS; ORGANIZATION; STRUCTURE      1      Section 1.1    Registered Office      1      Section 1.2    Place of Business; Offices      2      Section 1.3    Purpose; Nature of Business Permitted; Powers; Title to Property      2      Section 1.4    [Reserved]      2      Section 1.5    Tax Classification; No State Law Partnership      2      Section 1.6    Definitions      3      Section 1.7    Certificates      24      Section 1.8    Term      25      Section 1.9    Amended Bid      25      Section 1.10    Property Companies      25      Section 1.11    Liability of Members      26    ARTICLE II. PERCENTAGE INTERESTS, CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS      28      Section 2.1    Percentage Interests      28      Section 2.2    Capital Contributions      28      Section 2.3    Capital Accounts      30      Section 2.4    Admission of New Members      31      Section 2.5    Interest      31      Section 2.6    Capital Withdrawal Rights, Interest and Priority      31    ARTICLE III. MANAGEMENT OF THE COMPANY      31      Section 3.1    Company Governance      31      Section 3.2    Authority, Duties and Obligations of the Managing Member      33      Section 3.3    Managing Member Certifications      37      Section 3.4    Officers      37      Section 3.5    Operating Budget and Business Plan      39      Section 3.6    Voting Rights of Members      40      Section 3.7    Buy/Sell      41    ARTICLE IV. GENERAL GOVERNANCE      45      Section 4.1    Other Ventures      45      Section 4.2    Information      46      Section 4.3    Access      46      Section 4.4    Affiliate Transactions      46    ARTICLE V. TRANSFERS OF INTERESTS      47      Section 5.1    Restrictions on Transfer      47      Section 5.2    Non-Permitted Transfers      48      i Table of Contents (continued)        Page   ARTICLE VI. ALLOCATIONS      48      Section 6.1    General Rules      48      Section 6.2    Other Allocation Rules      49      Section 6.3    Tax Allocations: Code Section 704(c)      49    ARTICLE VII. DISTRIBUTIONS AND EXPENSES      50      Section 7.1    Distributions of Net Cash Flow      50      Section 7.2    Amounts Withheld      52      Section 7.3    Expenses      52    ARTICLE VIII. OTHER TAX MATTERS      52      Section 8.1    Tax Matters Member      52      Section 8.2    Furnishing Information to Tax Matters Member      52      Section 8.3    Tax Claims and Proceedings      53      Section 8.4    Books and Records      53      Section 8.5    Survival      54    ARTICLE IX. REPRESENTATIONS AND WARRANTIES; COVENANTS      54      Section 9.1    Representations and Warranties of Members      54      Section 9.2    ERISA Representation      56      Section 9.3    AML/OFAC Compliance      56      Section 9.4    Survival      58    ARTICLE X. DISSOLUTION AND TERMINATION OF THE COMPANY      58      Section 10.1    Dissolution      58      Section 10.2    Continuation of Interest of Member’s Representative      58      Section 10.3    Dissolution, Winding Up and Liquidation      59      Section 10.4    Member Bankruptcy.      59    ARTICLE XI. INDEMNIFICATION AND CONTRIBUTION      59      Section 11.1    Indemnity by the Company      59      Section 11.2    Exculpation      60      Section 11.3    Expenses      60      Section 11.4    Advance Payment of Expenses      60      Section 11.5    Beneficiaries      60      Section 11.6    Indemnification Procedure for Third Party and Other Claims      60      Section 11.7    Other Claims      61      Section 11.8    Limitation on Damages      61    ARTICLE XII. MISCELLANEOUS PROVISIONS      62      Section 12.1    Entire Agreement      62      Section 12.2    Amendments      62      Section 12.3    Applicable Law; Venue      62      ii Table of Contents (continued)        Page     Section 12.4    Enforcement      62      Section 12.5    Headings      62      Section 12.6    Severability      63      Section 12.7    Counterparts      63      Section 12.8    Filings      63      Section 12.9    Additional Documents      63      Section 12.10    Notices      63      Section 12.11    Waiver of Right to Partition and Bill of Accounting      64      Section 12.12    Confidentiality; Press Releases      64      Section 12.13    Uniform Commercial Code      65      Section 12.14    Binding Agreement      65      Section 12.15    Waiver      65      Section 12.16    DISCLOSURES      65      iii THE TRANSFER OF THE LIMITED LIABILITY COMPANY INTERESTS DESCRIBED IN THIS AGREEMENT IS RESTRICTED AS DESCRIBED HEREIN. AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF INK ACQUISITION II LLC, a Delaware Limited Liability Company THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of INK Acquisition II LLC, a Delaware limited liability company (the “Company”), is made effective as of the Closing Date (as defined below) (this “Agreement”), by and between CRE-Ink Member II Inc. (“Cerberus”) and Chatham TRS Holding Inc. (“Chatham”, and, together with Cerberus and any other Person who becomes a member of the Company from time to time in accordance with the provisions hereof, the RECITALS: 1. A Certificate of Formation of the Company was filed with the Secretary of State of the State of Delaware on May 4, 2011; and 2. Each of the Persons listed on Schedule A hereto has previously acquired a percentage interest in the Company and entered into the Limited Liability Company Agreement of the Company dated August 5, 2011 (the “Original Agreement”). NOW, THEREFORE, in consideration of the mutual promises and agreements herein made and intending to be legally bound hereby, the parties hereto amend and restate the Original Agreement in its entirety and agree as follows: ARTICLE I. GENERAL PROVISIONS; ORGANIZATION; STRUCTURE Section 1.1 Registered Office. The registered agent and office of the Company in the State of Delaware shall be National Corporate Research, Ltd., 615 South DuPont Highway, County of Kent, City of Dover, State of Delaware 19901. The Managing Member, after giving notice to the other Members, may change the registered office from one location to another in the State of Delaware. Section 1.2 Place of Business; Offices. The principal place of business of the Company, where the books and records of the Company shall be kept, shall be c/o Chatham TRS Holding Inc., 50 Cocoanut Row, Suite 200, Palm Beach, FL 33480. The Company may, at any time, change the location of the principal office of the Company or have one or more offices as may be established from time to time. Section 1.3 Purpose; Nature of Business Permitted; Powers; Title to Property. (a) The purpose to be conducted or promoted by the Company is to engage in the following activities: (i) to acquire, own, hold, manage, operate, lease, sell, transfer, service, convey, safekeep, dispose of, pledge, assign, borrow money against, finance, refinance or otherwise deal with the Business and the Properties and any portion thereof with unrelated third parties or with affiliated entities; (ii) to acquire, own, hold, sell, transfer, service, convey, safekeep, dispose of, pledge, assign, borrow money against, finance, refinance or otherwise deal with, publicly or privately issued securities and whether with unrelated third parties or with affiliated entities, in each case in connection with the Business and the Properties; (iii) to own equity interests in other limited liability companies, partnerships or other entities whose purposes are restricted to those set forth in clauses (i) and (ii) above; and (iv) to engage in any other lawful act or activity and to exercise any powers permitted to limited liability companies organized under the laws of the State of Delaware that are related or incidental to and necessary, convenient or advisable for the accomplishment of the above-mentioned purposes (including the entering into of interest rate or basis swap, cap, floor or collar agreements, or similar hedging transactions and referral, management, servicing and administration agreements). (b) The Company shall not engage in any other business or activity. Except as otherwise provided in Section 1.10 hereof and except for contracts customarily entered into by a property management agent on behalf of a hotel property owner, all property acquired in connection with the business of the Company shall be held by the Company in its own name, and all contracts and leases of real or personal property by or to the Company shall be made in its own name. (c) Title to assets of the Company, whether real, personal or mixed, tangible or intangible, shall be deemed to be owned by the Company, and no Member, individually or collectively, shall have any ownership interest in such assets or any portion thereof. Section 1.4 [Reserved] Section 1.5 Tax Classification; No State Law Partnership. (a) The Members intend that the Company shall be treated as a partnership for federal, state and local tax purposes.   -2- Each Member and the Company agree to file all tax returns and otherwise take all tax and financial reporting positions in a manner consistent with such treatment. No provision of this Agreement shall be deemed or construed to constitute the Company (including its subsidiaries) as a partnership (including a limited partnership) or joint venture, or any Member as a partner of or with any other Member for any purposes other than tax purposes. (b) Chatham is a TRS of Chatham REIT. The Members intend that the Company shall own the Properties in a manner that will not jeopardize the TRS status of Chatham. Accordingly, the Company will either (i) engage Island Hospitality Management or another entity that qualifies as an “eligible independent contractor” under Code Section 856(d)(9) to operate the Properties on its behalf or (ii) lease the Properties to the Property Leasecos and the Property Leasecos will engage Island Hospitality Management or another entity that qualifies as an “eligible independent contractor” under Code Section 856(d)(9) to operate the Properties on their behalf. Section 1.6 Definitions. Unless the context otherwise requires, the terms defined in this Section 1.6 shall, for the purposes of this Agreement, have the meanings herein specified (such meanings to be equally applicable to both the singular and plural forms of the terms defined). “1933 Act” has the meaning set forth in Section 12.16. “1940 Act” means the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. “Act” means the Delaware Limited Liability Company Act (as it may be amended from time to time and any successor to such Act). “Additional Capital Contribution” means any Capital Contribution made by a Member pursuant to Section 2.2(b) hereof. “Affiliate” means, with respect to a Person, another Person that directly or indirectly controls, is controlled by or is under common control with such first Person; provided, however, that for purposes only of the term “Permitted Transferee”, the term “Affiliate” shall have the meaning ascribed to it therein. For the avoidance of doubt, for purposes of this Agreement, including, without limitation, the definition of “Permitted Transferee,” (i) an Affiliate of Cerberus includes, without limitation, any entity or fund directly or indirectly controlled by the Persons that, as of the date hereof, control Cerberus; and (ii) an Affiliate of Chatham includes, without limitation, any entity or fund directly or indirectly controlled by the Persons that control Chatham REIT, and any successor to Chatham REIT, whether by merger, consolidation, sale of substantially all of the assets or otherwise. Additionally, for the avoidance of doubt, Island Hospitality Management shall not be considered to be an Affiliate of Chatham REIT or Chatham. “Affiliated Individual” means, with respect to a Person, any individual who is an officer, director, shareholder, employee, partner or member of such Person or an individual who is related by blood, marriage or adoption to any of the foregoing.   -3- “Agreement” has the meaning set forth in the Preamble. “Allocation Schedule” has the meaning set forth in Section 5.1(c). “Amended Bid” means collectively (i) the Innkeepers Binding Commitment Agreement, and (ii) the Midland Amended and Restated Binding Commitment. “Approved FATF Country” shall mean any country that is a member of the Financial Action Task Force on Money Laundering, as such list may be amended, from time to time, and as approved in this Agreement. As of the date of this Agreement, the following countries are Approved FATF Country members: Argentina, Australia, Austria, Belgium, Brazil, Canada, Denmark, Finland, France, Germany, Greece, Hong Kong, Iceland, Ireland, Italy, Japan, Luxembourg, Mexico, Kingdom of the Netherlands, New Zealand, Norway, Portugal, Singapore, Spain, Sweden, Switzerland, Turkey, United Kingdom and the United States. “Approved Severance Costs” means any severance payable to Chatham Company Personnel to the extent such severance (i) for a senior Chatham Company Employee does not exceed three (3) months of such employee’s monthly salary, (ii) for any other Chatham Company Employee is determined by Chatham in accordance with such employee’s position and seniority and does not exceed two (2) months of such employee’s monthly salary or (iii) otherwise has been approved by Cerberus, the Cerberus Ink I Member, the Cerberus Ink III Member, the Cerberus Ink IV Member, the Cerberus Ink V Member, the Cerberus Ink VI Member or the Cerberus Ink VII Member at the time of grant to the applicable Chatham Company Personnel. “Asset” means an asset owned by the Company or its Subsidiaries. “Bankruptcy” means, with respect to any Person, a “Voluntary Bankruptcy” or an “Involuntary Bankruptcy”. A “Voluntary Bankruptcy” shall mean, with respect to any Person, (a) an admission in writing by such Person of its inability to pay its debts generally or a general assignment by such Person for the benefit of creditors, (b) the filing of any petition or answer by such Person seeking to adjudicate it bankrupt or insolvent or seeking for itself any liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of such Person or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or seeking, consenting to or acquiescing in the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for such Person or for any substantial part of its property, or (c) corporate action taken by such Person to authorize any of the actions set forth above. An “Involuntary Bankruptcy” shall mean, with respect to any Person, without the consent or acquiescence of such Person, the entering of an order for relief or approving a petition for relief or reorganization or any other petition seeking any or other similar relief under any present or future bankruptcy, insolvency or similar statute, law or regulation or the filing of any such petition against such Person which order or petition shall not be dismissed within 90 days or, without the consent or acquiescence of such Person, the entering of an order appointing a trustee, custodian, receiver or liquidator of such Person or of all or any substantial part of the property of such Person which order shall not be dismissed within 90 days.   -4- “Bankruptcy Court” means the United States Bankruptcy Court for the Southern District of New York. “Business” means (a) the acquisition, ownership, lease and operation of certain hotel properties as of the date hereof owned, leased and operated by Innkeepers USA Trust and its subsidiaries, (b) the ownership, lease and operation of any other Properties acquired by the Company in accordance with this Agreement, and (c) any other business of the Company, directly or indirectly related, incidental to or connected with the foregoing. “Business Day” means any day other than a Saturday, Sunday or any other day on which banks in New York City are required or permitted by law to be closed. “Business Plan” means the comprehensive strategic plan for the Company’s, Ink I’s, Ink III’s, Ink IV’s, Ink V’s, Ink VI’s and Ink VII’s ownership, operation, leasing, financing and sale of the Properties and the properties owned by Ink I, Ink IV, Ink V, Ink VI and Ink VII, as in effect from time to time pursuant to Section 3.5 hereof. “Buy Notice” has the meaning set forth in Section 3.7. “Buy/Sell Closing Date” has the meaning set forth in Section 3.7. “Buy/Sell Notice” has the meaning set forth in Section 3.7. “Buy/Sell Right” has the meaning set forth in Section 3.7. “Capital Account” has the meaning set forth in Section 2.3(a). “Capital Call” shall mean a written notice to the Members calling for a Capital Contribution, which written notice shall include (a) the total amount of the Capital Contribution then required, (b) a brief description of the expenditures or obligations giving rise to the requirement for such Capital Contribution, (c) each Member’s proportionate share of the total Capital Contribution as then required by this Agreement, (d) the date by which each Member’s Capital Contribution is required to be made, which date shall be thirty (30) days (or, with respect to the Capital Call to fund the acquisition of the Properties listed on Annex A hereto, ten (10) days) after such written notice has been given or such other date as may be agreed to by the Members, and (e) the account of the Company to which such Capital Contributions must be paid. “Capital Contribution” means, with respect to any Member, the amount of money contributed to the Company in exchange for a Percentage Interest in the Company, including Initial Capital Contributions. “Carveout Guarantor” has the meaning set forth in Section 1.11(c)(i).   -5- “Carveout Guaranty” means a guaranty of non-recourse carveouts, in form and substance satisfactory to the applicable Lender and approved in advance in writing by the Members, (including, without limitation, any such guaranty required by Midland Loan Services in connection with the Midland Loan). “Cerberus” has the meaning set forth in the Preamble. “Cerberus Initial Members” means Cerberus and its Permitted Transferees. “Cerberus Ink I Member” means CRE-Ink REIT Member LLC or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink I LLC Agreement). “Cerberus Ink III Member” means CRE-Ink TRS Holding Inc. or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink III LLC Agreement). “Cerberus Ink IV Member” means CRE-Ink REIT Member IV LLC or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink IV LLC Agreement). “Cerberus Ink V Member” means CRE-Ink REIT Member V LLC or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink V LLC Agreement). “Cerberus Ink VI Member” means CRE-Ink REIT Member VI LLC or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink VI LLC Agreement). “Cerberus Ink VII Member” means CRE-Ink REIT Member VII LLC or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink VII LLC Agreement). “Certificate of Formation” means the Certificate of Formation referred to in Recital 1 and any and all amendments thereto and restatements thereof filed on behalf of the Company with the office of the Secretary of State of the State of Delaware pursuant to the Act. “Chatham” has the meaning set forth in the Preamble. “Chatham Cap” has the meaning set forth in Section 2.2(a). “Chatham Company Personnel” means any personnel employed by Chatham (or one of its Affiliates other than Ink I, Ink III, Ink IV, Ink V, Ink VI, Ink VII or the Company) solely for the purpose of providing asset management services to the Company, Ink I, Ink III, Ink IV, Ink V, Ink VI and/or Ink VII, the employment generally of whom, including compensation and severance other than Approved Severance Costs, if any, payable to such personnel, has been approved by Cerberus, the Cerberus Ink I Member, the Cerberus Ink III Member, the Cerberus Ink IV Member, the Cerberus Ink V Member, the Cerberus Ink VI Member or the Cerberus Ink VII Member.   -6- “Chatham Initial Members” means Chatham and its Permitted Transferees. “Chatham Ink I Member” means Chatham Lodging or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink I LLC Agreement). “Chatham Ink III Member” means Chatham in its capacity as a member or managing member, as applicable, of Ink III, or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink III LLC Agreement). “Chatham Ink IV Member” means Chatham Lodging in its capacity as a member or managing member, as applicable, of Ink IV, or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink IV LLC Agreement). “Chatham Ink V Member” means Chatham Lodging in its capacity as a member or managing member, as applicable, of Ink V, or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink V LLC Agreement). “Chatham Ink VI Member” means Chatham Lodging in its capacity as a member or managing member, as applicable, of Ink VI, or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink VI LLC Agreement). “Chatham Ink VII Member” means Chatham Lodging in its capacity as a member or managing member, as applicable, of Ink VII, or its Permitted Transferee(s) (for purposes of this definition, as defined in the Ink VII LLC Agreement). “Chatham Lodging” means Chatham Lodging LP. “Chatham REIT” means Chatham Lodging Trust, a Maryland real estate investment trust. “Close Associate” means a Person who is widely and publicly known (or is actually known) to be a close associate of a Senior Foreign Political Figure. “Closing Date” means the date upon which the transactions contemplated by the Plan are consummated. “Contributing Members” has the meaning set forth in Section 2.2(d). “Control” means, with respect to any Person, the power of another Person, through ownership of equity, contract rights or otherwise, to direct the management and policies of such Person, and “controlled” and “controlling” have correlative meanings. “Cure” means, with respect to any action or failure to act triggering a right to Cure, that such action or failure to act, to the extent that it triggered the right to Cure, has   -7- been discontinued, and all parties adversely affected by such action or failure to act have been made whole in all material respects as if such action or failure to act had not occurred. “Debtors” means Innkeepers USA Trust and each of the other debtors and debtors-in-possession in the Bankruptcy Court Chapter 11 Case No. 10-13800 (SCC). “Depreciation” means, for each Fiscal Period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such Fiscal Period, except that if the Gross Asset Value of such asset differs from its adjusted basis for federal income tax purposes at the beginning of such Fiscal Period, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Period bears to such beginning adjusted tax basis; provided, however, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Period is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Tax Matters Member. “Election Notice” has the meaning set forth in Section 3.7(a)(i). “Environmental Law” means all applicable laws, including, for this purpose, all common law, governing public health or safety, workplace health or safety, pollution or the protection of the environment. “Expense Reimbursement” has the meaning set forth in Section 3.1(c). “Failed Contribution” has the meaning set forth in Section 2.2(d). “Family Member” means, with respect to any specified natural person, (a) any parent, child, descendant or sibling of such natural person (including relationships resulting from adoption) or (b) the spouse of such natural person or of any person covered by clause (a). “Fiscal Period” means (a) the period commencing on the Closing Date and ending on December 31, 2011, (b) any subsequent 12-month period commencing on January 1 and ending on December 31 and (c) any portion of the period described in clauses (a) and (b) of this sentence (i) for which the Company is required to allocate Profits, Losses and other items of Company income, gain, loss or deduction pursuant to Article VI and (ii) ending on the date of an adjustment to the Gross Asset Value pursuant to clause (b) of the definition of “Gross Asset Value”.   -8- “Fiscal Year” means (a) the period commencing on the Closing Date and ending on and ending on December 31 and (c) the period commencing on the immediately preceding January 1 and ending on the date on which all property of the Company is distributed to the Members pursuant to Article X. “Funded Amount” has the meaning set forth in Section 2.2(d). “GAAP” means generally accepted accounting principles in the United States, “Governmental Entity” means a court, arbitral tribunal, administrative agency or commission or other governmental or other regulatory authority or agency. (a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the fair market value of such asset at the time it is accepted by the Company, unreduced by any liability secured by such asset, as reasonably determined by the Managing Member; (b) the Gross Asset Values of all Assets shall be adjusted to equal their respective fair market values, unreduced by any liabilities secured by such assets, as reasonably determined by the Managing Member as of the following times: (i) the acquisition of an additional interest in the Company by any new or existing Member in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Company to a Member of more than a de minimis amount of property as consideration for an interest in the Company; (iii) the grant of more than a de minimis interest in the Company as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a partner capacity or by a new Member acting in a partner capacity or in anticipation of being a partner; and (iv) the liquidation of the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); provided, however, that an adjustment described in clauses (i), (ii) or (iii) of this paragraph shall be made only if the Managing Member reasonably determines that such an adjustment is necessary to reflect the relative economic interests of the Members; (c) the Gross Asset Value of any Asset distributed to any Member shall be adjusted to equal the fair market value of such asset on the date of distribution, unreduced by any liability secured by such asset, as reasonably determined by the Managing Member; and (d) the Gross Asset Value of all Assets shall be increased (or decreased) to Regulations Section 1.704-1(b)(2)(iv)(m) and paragraph (f) of the definition of “Profits” and “Losses” or Section 8.2(g); provided, however, that Gross Asset   -9- Value shall not be adjusted pursuant to this paragraph (d) to the extent that an adjustment pursuant to paragraph (b) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this paragraph (d). paragraphs (a), (b) or (d) of this definition, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Profits and Losses. “Hazardous Substance” means any material, substance or waste as to which liability or standards of conduct may be imposed pursuant to any Environmental Laws. “Hotel Management Agreement” means the Hotel Management Agreements in the form attached hereto as Exhibit A, to be executed and delivered on the Closing Date, between Island Hospitality Management and each Property Leaseco. “Hotel Manager” has the meaning set forth in the definition of Major Decision. “Immediate Family Member” includes the parents, siblings, spouse, children, and spouse’s parents and siblings, of a Senior Foreign Political Figure. “Indebtedness” means (a) the principal, premium (if any), interest and related fees and expenses (if any) in respect of (i) indebtedness for money borrowed and (ii) indebtedness evidenced by notes, debentures, bonds or other similar instruments, (b) all obligations in respect of outstanding letters of credit, acceptances and similar obligations, (c) that portion of obligations with respect to capital leases not entered into in the ordinary course of business and properly accounted for as a liability, (d) any obligation owed for all or any part of the deferred purchase price of property or services except for trade liabilities incurred in the ordinary course of business, and (e) a guaranty of any of the obligations described in the foregoing clauses of this definition. “Indemnifiable Losses” has the meaning set forth in Section 11.1. “Indemnified Person” has the meaning set forth in Section 11.1. “Independent Appraiser” has the meaning set forth in Section 3.7(a)(ii). “Initial Capital Contribution Amount” means as to each Initial Member, the dollar amount that is set forth opposite such Member’s name on Schedule A and labeled such Member’s “Initial Capital Contribution Amount”. “Initial Capital Contributions” has the meaning set forth in Section 2.2(a). “Initial Members” means the Chatham Initial Members and Cerberus Initial Members. “Ink I” means INK Acquisition LLC, a Delaware limited liability company.   -10- “Ink I Affiliate” means, with respect to any Member, any Affiliate of such Member that is a member of Ink I in accordance with the Ink I LLC Agreement. “Ink I Buy/Sell Right” has the meaning set forth in Section 3.7. “Ink I Capital Contributions” means, with respect to any Ink I Affiliate, such Person’s capital contributions to Ink I, made pursuant to and in accordance with the Ink I LLC Agreement. “Ink I Initial Capital Contribution” means the Chatham Ink I Member’s initial capital contribution pursuant to and as required by Ink I LLC Agreement. “Ink I LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of INK Acquisition LLC, effective as of the Closing Date, as may be amended in accordance therewith. “Ink I Notifying Member” has the meaning set forth in Section 3.7. “Ink I Valuation Amount” has the meaning set forth in Section 3.7(ii). “Ink III” means INK Acquisition III LLC, a Delaware limited liability company. “Ink III Affiliate” means, with respect to any Member, any Affiliate of such Member that is a member of Ink III in accordance with the Ink III LLC Agreement. “Ink III Buy/Sell Right” has the meaning set forth in Section 3.7. “Ink III Capital Contributions” means, with respect to any Ink III Affiliate, such Person’s capital contributions to Ink III, made pursuant to and in accordance with the Ink III LLC Agreement. “Ink III Initial Capital Contribution” means the Chatham Ink III Member’s initial capital contribution pursuant to and as required by Ink III LLC Agreement. “Ink III LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of INK Acquisition III LLC, effective as of the Closing Date, as may be amended in accordance therewith. “Ink III Notifying Member” has the meaning set forth in Section 3.7. “Ink III Valuation Amount” has the meaning set forth in Section 3.7(ii). “Ink IV” means INK Acquisition IV LLC, a Delaware limited liability company. “Ink IV Affiliate” means, with respect to any Member, any Affiliate of such Member that is a member of Ink IV in accordance with the Ink IV LLC Agreement. “Ink IV Buy/Sell Right” has the meaning set forth in Section 3.7.   -11- “Ink IV Capital Contributions” means, with respect to any Ink IV Affiliate, such Person’s capital contributions to Ink IV, made pursuant to and in accordance with the Ink IV LLC Agreement. “Ink IV Initial Capital Contribution” means the Chatham Ink IV Member’s initial capital contribution pursuant to and as required by Ink IV LLC Agreement. “Ink IV LLC Agreement” means the Limited Liability Company Agreement of INK Acquisition IV LLC, effective as of the Closing Date, as may be amended in accordance therewith. “Ink IV Notifying Member” has the meaning set forth in Section 3.7. “Ink IV Valuation Amount” has the meaning set forth in Section 3.7(ii). “Ink V” means INK Acquisition V LLC, a Delaware limited liability company. “Ink V Affiliate” means, with respect to any Member, any Affiliate of such Member that is a member of Ink V in accordance with the Ink V LLC Agreement. “Ink V Buy/Sell Right” has the meaning set forth in Section 3.7. “Ink V Capital Contributions” means, with respect to any Ink V Affiliate, such Person’s capital contributions to Ink V, made pursuant to and in accordance with the Ink V LLC Agreement. “Ink V Initial Capital Contribution” means the Chatham Ink V Member’s initial capital contribution pursuant to and as required by Ink V LLC Agreement. “Ink V LLC Agreement” means the Limited Liability Company Agreement of INK Acquisition V LLC, effective as of the Closing Date, as may be amended in accordance therewith. “Ink V Notifying Member” has the meaning set forth in Section 3.7. “Ink V Valuation Amount” has the meaning set forth in Section 3.7(ii). “Ink VI” means INK Acquisition VI LLC, a Delaware limited liability company. “Ink VI Affiliate” means, with respect to any Member, any Affiliate of such Member that is a member of Ink VI in accordance with the Ink VI LLC Agreement. “Ink VI Buy/Sell Right” has the meaning set forth in Section 3.7. “Ink VI Capital Contributions” means, with respect to any Ink VI Affiliate, such Person’s capital contributions to Ink VI, made pursuant to and in accordance with the Ink VI LLC Agreement.   -12- “Ink VI Initial Capital Contribution” means the Chatham Ink VI Member’s initial capital contribution pursuant to and as required by Ink VI LLC Agreement. “Ink VI LLC Agreement” means the Limited Liability Company Agreement of INK Acquisition VI LLC, effective as of the Closing Date, as may be amended in accordance therewith. “Ink VI Notifying Member” has the meaning set forth in Section 3.7. “Ink VI Valuation Amount” has the meaning set forth in Section 3.7(ii). “Ink VII” means INK Acquisition VII LLC, a Delaware limited liability company. “Ink VII Affiliate” means, with respect to any Member, any Affiliate of such Member that is a member of Ink VII in accordance with the Ink VII LLC Agreement. “Ink VII Buy/Sell Right” has the meaning set forth in Section 3.7. “Ink VII Capital Contributions” means, with respect to any Ink VII Affiliate, such Person’s capital contributions to Ink VII, made pursuant to and in accordance with the Ink VII LLC Agreement. “Ink VII Initial Capital Contribution” means the Chatham Ink VII Member’s initial capital contribution pursuant to and as required by Ink VII LLC Agreement. “Ink VII LLC Agreement” means the Limited Liability Company Agreement of INK Acquisition VII LLC, effective as of the Closing Date, as may be amended in accordance therewith. “Ink VII Notifying Member” has the meaning set forth in Section 3.7. “Ink VII Valuation Amount” has the meaning set forth in Section 3.7(ii). “Innkeepers Binding Commitment Agreement” means that certain Second Amended and Restated Binding Commitment Agreement Regarding the Acquisition and Restructuring of Certain Subsidiaries of Innkeepers USA Trust dated October 18, 2011 by and among the Company, Ink I, Ink III, and the other Persons party thereto. “Involuntary Bankruptcy” has the meaning set forth in the definition of Bankruptcy. “IRS” means the U.S. Internal Revenue Service, or any successor government agency. “Island Hospitality Management” means Island Hospitality Management III, Inc. or one of its Affiliates.   -13- “Lender” means the lender under any Loan Documents to be executed with respect to a Loan, if any. “Loan” means a loan obtained or assumed by the Company or any of its Subsidiaries, as borrower, secured by all or any portion of the Property, including the Midland Loan. “Loan Documents” means any and all loan documents to be executed by the Company or any of its Subsidiaries, as applicable, and the Lender in connection with a Loan, if any. “Major Decision” means any determination to cause the Company or any Subsidiary of the Company to: (a) directly or indirectly acquire, or execute and deliver any documents, agreements or instruments necessary to close on the direct or indirect acquisition by the Company or any Subsidiary of the Company of, any Property, except as set forth in the then-approved Operating Budget or the then-approved Business Plan; (b) (A) sell, assign, transfer, encumber or dispose of the Company, any Property Company, any Property, or any revenue-generating business of the Company or any Property Company, or agree to any of the foregoing, or (B) except as expressly provided in this Agreement or in the then-approved Operating Budget or the then-approved Business Plan, improve, design, rehabilitate, alter, or repair (collectively, the “Repairs”) of any of the Properties, provided, however, that the Managing Member may make or caused to be made Repairs not contemplated by the then-approved Operating Budget if (i) any such Repair is required by any franchisor under the applicable franchise agreement or any other agreement with the franchisor (including, but not limited to, that certain Agreement for Adequate Assurance of Completion of Certain PIPS and Assumptions of Agreements, dated June 25, 2010, by and between the Debtors and Marriot International, Inc.), (ii) emergency action or expenditures is necessary to prevent imminent risk to the health and safety of Persons on or about the Properties, imminent material property damage or imminent imposition of criminal or civil sanctions against the Company or any Member (each, an “Emergency Expenditure”), provided that (1) any such Emergency Expenditure made without approval of all Initial Members is, in the Managing Member’s commercially reasonable judgment, reasonable and necessary under the circumstances set forth above and (2) the Managing Member endeavors diligently and in good faith (x) to notify the Initial Members of any such Emergency Expenditure promptly in writing and (y) attempts to obtain verbal approval of the Initial Members for any required Emergency Expenditure, or (iii) if the aggregate cost of such Repairs fall within the thresholds set forth in clause (l) of this definition; (c) except as otherwise expressly permitted by this Agreement, call for Capital Contributions, approve Capital Calls or determine the portion of the then-approved Operating Budget that is to be funded by equity and by debt, or raise any new equity for any Subsidiary of the Company or admit any new member, partner or owner to the Company or any of its Subsidiaries;   -14- (d) make any operating expenditure or incur any operating obligation by or on behalf of the Company that varies materially from the then-approved Operating Budget other than an Emergency Expenditure made pursuant to the procedures set forth in clause (b) of this definition and expenditures that fall within the (e) execute or modify, amend, supplement, terminate, extend or renew leases with tenants for occupancy of space in any Property, except (i) for any lease with a Property Leaseco or any other TRSs of Chatham REIT and CRE-Ink REIT Member, LLC or (ii) to the extent delegated to the Hotel Manager pursuant to the Hotel Management Agreements or set forth in the then-approved Operating Budget or the then-approved Business Plan; (f) enter into, modify or terminate any contractual arrangements with service providers (including lenders, attorneys, consultants, appraisers, third party property managers, brokerage companies, general contractors, accountants, auditors, architects, banks or other depositaries and all other service providers) for services to be rendered in connection with the business of the Company; provided, however, that (i) until further written notice, Cerberus hereby delegates the tasks set forth in this subsection (f) to the Managing Member, so long as all such services are expressly provided for and are not in excess of the amounts budgeted for such services in the then-approved Operating Budget and Business Plan and either (x) are terminable, without cause or fee, upon not more than thirty (30) days notice, (y) have a stated term of not more than one year, or (z) are expressly approved in writing by Cerberus, (ii) Cerberus hereby authorizes the Managing Member to cause the Property Leasecos to engage Island Hospitality Management to act as the hotel manager of all of the Properties on behalf of the Property Leasecos (the “Hotel Manager”) pursuant to the Hotel Management Agreements and (iii) the entry into, modification or termination of any contractual arrangement that requires an annual payment by the Company of $25,000 or less, or the determination to take any of the foregoing actions, shall not be considered a Major Decision; (g) incur or pay any real estate taxes, insurance premiums, or any assessments or charges with respect to the ownership and operation of any Property, except to the extent provided for in the then-approved Operating Budget or delegated to the Hotel Manager pursuant to the Hotel Management Agreement; (h) make distributions to the Members other than as set forth in Article VII of this Agreement; (i) establish reserves, determine reserve levels or make any distributions from any such reserves, except as set forth in the then-approved Operating Budget or the then-approved Business Plan; (j) except as set forth in the then-approved Operating Budget or the then-approved Business Plan, cause or permit the Company to finance all or any portion of any Property (other than the Midland Loan and trade debt incurred in the ordinary course of business consistent with the then-approved Operating Budget), agree to the form, substance,   -15- provider or documentation pertaining to any Loan, modify, restructure or terminate any Loan or repay any Loan except in accordance with the express terms of the applicable Loan, or enter into, modify or amend any documents, agreements or instruments relating to any Loan; (k) except to the extent expressly set forth in the then-approved Operating Budget or the then-approved Business Plan, select or determine any insurance plans, carriers or coverages to be purchased and maintained by or on behalf of the Company or any Property Company; (l) make any expenditures which are at variance with the then-approved Operating Budget or Business Plan (A) (1) with respect to any Operating Expense (as defined in the applicable Hotel Management Agreement) for any Property unless Operating Expenses for such Property would not exceed the estimated Operating Expenses for such Property as set forth in the then-current and approved Operating Budget with respect to such Property by five percent (5%) or more (in the aggregate, but not by line item) and (2) with respect to any other expenditure not described in clause (1), unless the variance in question does not exceed a particular summary line item by the lesser of (x) $50,000 or (y) 10% of that summary line item, and (B) unless the overall Operating Budget for the Company, Ink I, Ink III, Ink IV, Ink V, Ink VI and Ink VII is not exceeded in the aggregate by more than 2.5% (excluding, for purposes of the foregoing calculation, the use of any contingency line items set forth in the then-approved Operating Budget)), and provided that in any case the Managing Member may make an Emergency Expenditure pursuant to the procedures set forth in clause (b) of this definition); (m) grant or convey any easement, lien, ground lease, mortgage, deed, deed of trust, bill of sale, contract or other instrument purporting to convey or encumber any Property, either wholly or in part; (n) take any Bankruptcy action on behalf of the Company or any of its Subsidiaries; (o) institute any legal or arbitration proceedings in the name of the Company, settle any legal or arbitration proceedings against the Company or confess any judgment against the Company or any Property, other than (i) the institution of an eviction action, a suit for breach of a tenant lease or other similar proceeding contemplated in or provided for in the then-approved Operating Budget or the then-approved Business Plan or (ii) settlements or compromises for litigation or arbitration providing solely for the payment of money damages where the amount paid (after giving effect to any insurance proceeds) in settlement or compromise does not exceed $50,000; (p) execute, deliver or file any agreement, permit, request, application or filing with any governmental agency, any neighboring property owner, any community organization or any similar regulatory body, or send any correspondence to or have any other material communications with, any governmental agency, which directly binds the Company or any of its Affiliates or any Member or any of its Affiliates, or which advocates a position on behalf of the Company or its Affiliates or any Member or its Affiliate (excluding correspondence, communications and other actions with respect to ministerial matters consistent with the then-approved Operating Budget and the then-approved Business Plan);   -16- (q) approve any investment other than as contemplated by this Agreement or approve any renovation or disposition of any Property, except as expressly authorized by the then-approved Business Plan and other than an Emergency Expenditure or Repair made pursuant to the procedures set forth in clause (b) of this definition; (r) enter into any exclusivity, competition or confidentiality agreement that is or purports to be binding upon any Member or any of its Affiliates or interest holders; (s) enter into any settlements with any third party or any consent decree, order (judicial or otherwise) with any Governmental Entity, related to the breach of any Environmental Law, or the sampling, monitoring, treatment, remediation, removal or clean up of Hazardous Substances with respect to the Properties; (t) knowingly take or approve, or refrain from taking or approving, any action that is reasonably likely to lead to a default under any Loan Documents or to a material dispute with any Lender; (u) knowingly take or approve, or refrain from taking or approving, any action that could trigger a recourse provision under any then-outstanding Loan; (v) approve any marketing plans or agreements with respect to any Property, except as expressly authorized by the then-approved Business Plan; (w) require or permit the Company to make any loan to any Member or any of its Affiliates, or require or permit any loan (other than a Member Loan) to be made by any Member to the Company; (x) cause the Company or any Property Company to execute or deliver any indemnity or guaranty; (y) change the Company’s depreciation and accounting methods and make other decisions with respect to the treatment of various transactions for federal income tax purposes, and change the Company’s elections for federal, state or local income tax purposes; (z) amend this Agreement (or the corresponding organizational documents of any Subsidiary of the Company) in any respect; (aa) take or approve any action relating to any tax certiorari proceeding or other tax appeal affecting any Property; (bb) recapitalize, reclassify, redeem, repurchase or otherwise acquire any equity or other interests of the Company or any Subsidiary of the Company;   -17- (cc) merge, consolidate or dissolve the Company or any of its Subsidiaries; (dd) remove and replace Island Hospitality Management as Hotel Manager; (ee) permit or cause any Transfer that may reasonably be expected to cause the assets of the Company or any Subsidiary of the Company to be deemed “plan assets” (within the meaning of 29 C.F.R. 2510.3-101, as modified by Section 3(42) of ERISA); (ff) enter into any swap, hedge, collar or other interest rate protection agreement; (gg) enter into any lease, whether as lessor or lessee, other than short term storage leases in connection with a capital program or equipment leases in the (hh) take any action that could reasonably be expected to cause Chatham to fail to qualify as a TRS of Chatham REIT; (ii) [reserved] (jj) cause any rebranding of properties or entry into new franchise agreements; (kk) approve or implement any Operating Budget or Business Plan, as set forth in Section 3.5; (ll) except as otherwise expressly permitted pursuant to this Agreement or the then-current Operating Budget or Business Plan, entering into, amending or modifying agreements with cost or liability to the Company, Ink I, Ink III, Ink IV, Ink V, Ink VI, Ink VII or their respective Subsidiaries in excess of $5 million in any fiscal year or which are otherwise material to the business of that for purposes of this provision, the cost of an agreement shall be calculated based on only the period prior to the time that the Company, Ink I, Ink III, Ink IV, Ink V, Ink VI, Ink VII or the applicable Subsidiary shall have the right to freely terminate such agreement, and shall include any fee payable upon termination by the Company, Ink I, Ink III, Ink IV, Ink V, Ink VI, Ink VII or any of their respective Subsidiaries. (mm) entering into any agreement with an Affiliate of a Member other than pursuant to Section 4.4; (nn) causing the Company or any Subsidiary other than a Property Company or Property Leaseco to hold any assets other than (w) the interests in its Subsidiaries as of the Closing Date after giving effect to the transactions contemplated by the Plan, (x) any interest in an entity treated as a corporation for U.S. federal income tax   -18- purposes, (y) any cash reserves intended for distributions to the Members or to pay Company expenses or (z) any other assets that the Managing Member is permitted to acquire and hold pursuant to the then-effective Operating Budget; (oo) entering into or terminating, disposing of or materially amending the terms of any joint venture to which the Company or any of its Subsidiaries is a party; (pp) changing the principal banking institutions with which the Company or its subsidiaries maintain deposit, borrowing or other relationships; or (qq) materially changing the line(s) of business of the Company and its Subsidiaries or conducting business in a jurisdiction other than the United States. “Managing Member” means Chatham, in its capacity as Managing Member of the Company, and any successor thereto appointed in accordance with this Agreement. “Member” has the meaning set forth in the preamble. “Member Loan” has the meaning set forth in Section 2.2(d). “Midland Amended and Restated Binding Commitment” means that certain Amended and Restated Binding Commitment Regarding the Acquisition and Restructuring of Certain Subsidiaries of Innkeepers USA Trust dated October 18, 2011 by and among the Company, Ink I, Ink III and Midland Loan Services, a division of PNC National Bank, National Association. “Midland Loan” means the new non-recourse mortgage loan in an aggregate principal amount of not less than $675,000,000 made by Midland Loan Services, a division of PNC National Bank, as contemplated by the Amended Bid. “Minimum Cerberus Multiple” has the meaning set forth in Section 7.1(b). “Monthly Expense Amount” has the meaning set forth in Section 3.1(c)(i). “Net Cash Flow” means, during the applicable period, the gross cash proceeds derived by the Company during such period from any source (including financings or refinancings) less the portion thereof used to pay or establish reserves for all Company operating expenses, the Expense Reimbursement, the fees payable under the Hotel Management Agreements, debt payments, taxes, capital improvements, replacements and contingencies or otherwise required to be held by the Company, all as determined by the Managing Member in its reasonable discretion subject to the provisions of this Agreement; provided, however, that Net Cash Flow shall not be reduced by depreciation, amortization, cost recovery deductions or similar allowances, but shall be increased by any reductions of previously established reserves; and provided further that Net Cash Flow shall not include any cash that the Company or its Subsidiaries is prohibited from distributing to the Members by the terms of any Indebtedness of the Company or its Subsidiaries.   -19- “Non-Contributing Member” has the meaning set forth in Section 2.2(d). “Non-Notifying Member” has the meaning set forth in Section 3.7. “Notifying Member” has the meaning set forth in Section 3.7. Control. “OFAC List Sanctions Programs” means any countries, territories, individuals or entities that are prohibited pursuant to the laws, regulations or Executive Orders administered by OFAC, including the List of Specially Designated Nationals and Blocked Persons administered by OFAC, as such list may be amended “Officer” means any officer of the Company or any Subsidiary thereof appointed in accordance with this Agreement or by the manager of such Subsidiary. “Operating Budget” means the annual operating budget for the ownership, operation, leasing, marketing and sale of the Properties and the properties owned by Ink I, Ink IV, Ink V, Ink VI, and Ink VII, as in effect from time to time pursuant to Section 3.5 hereof. “Percentage Interest” means, with respect to any Member, such Member’s ownership interest in the Company, calculated as the percentage obtained by dividing the Capital Contributions of such Member by the aggregate Capital Contributions of all the Members. “Permitted Transferee” means (i) with respect to any Member who is not a natural person, any Affiliate of such Member (provided that for purposes of this clause (i), “Affiliate” shall mean, with respect to the Member in question, a Person (including any fund or managed account) that such Member solely controls, is controlled solely by or under common control with (and no Person other than the common controlling Person controls such Affiliate) such Member, and provided further that notwithstanding the immediately preceding proviso, Affiliates specified in the second sentence of the definition of Affiliate shall be deemed to be “Affiliates” for purposes of this clause (i)); (ii) with respect to any Member who is a natural person, (x) upon the death of such natural person, any Person in accordance with such natural person’s will or the laws of intestacy; (y) the Family Members of such natural person, entities formed for estate or family planning purposes and/or one or more trusts for the sole benefit of the Family Members of such natural person provided that such natural person shall not be released from his obligations under this Agreement as a Member; and (iii) in the event of the dissolution, liquidation or winding up of any Person that is a corporation, partnership or limited liability company, the stockholders, partners or members, as applicable, or a successor corporation, partnership or limited liability company all of the stockholders, partners or members of which, as applicable, are the Persons who were the stockholders, partners or members, as applicable, of such entity immediately prior to the dissolution, liquidation or winding up of such Person; provided further, however, that no such Transfer under any one or more of the foregoing clauses (i) through (iii) to any such   -20- Person shall be permitted where such Transfer (x) fails to comply with the terms of Section 5.1, including, without limitation, by reason of a failure to comply in any respect with any federal or state securities laws, including, without limitation, the 1940 Act, or (y) would result in the Company becoming subject to the Exchange Act. “Person” means any individual, corporation, association, partnership (general or limited), joint venture, trust, joint-stock company, estate, limited liability company, Series, unincorporated organization or other legal entity or organization. “Plan” means the amended and restated plan of reorganization of the Debtors attached as Exhibit B to the Amended Bid. “Post-Termination Major Decision” means any determination to cause the Company or any Subsidiary of the Company to take any action described in clauses (h), (n), (r), (t) (solely to the extent such action would trigger a Carveout Guaranty made by Chatham or its Affiliate), (u) (solely to the extent such action would trigger a Carveout Guaranty made by Chatham or its Affiliate), (z), (bb), or (hh) of the definition of “Major Decisions”. “President and CEO” has the meaning set forth in Section 3.4(d)(i). “Profits” or “Losses” means for each Fiscal Period, an amount equal to the taxable income or loss for such Fiscal Period. Such amount shall be determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments (without duplication): (a) any income that is exempt from federal income tax and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be added to such taxable income or loss; (b) any expenditures described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be subtracted from such taxable income or loss; (c) in the event the Gross Asset Value of any Asset is adjusted pursuant to paragraphs (b) or (c) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as an item of gain (if the adjustment increases the Gross Asset Value of the asset) or an item of loss (if the adjustment decreases the Gross Asset Value of the asset) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; (d) gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;   -21- (e) in lieu of depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss there shall be taken into account Depreciation for such Fiscal Period, computed in accordance with the definition of Depreciation; and (f) to the extent an adjustment to the adjusted tax basis of any Asset pursuant to Code Section 734(b) or 743(b) is required pursuant to Regulations Section 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the Losses. “Promoted Interest” has the meaning set forth in Section 7.1(b). “Properties” means the hotel properties listed on Annex A hereto, and any other property (real, personal or mixed) or real estate acquired by the Company in accordance with this Agreement. “Property Company” means a direct or indirect subsidiary of the Company through which the Company indirectly holds one or more Properties. “Property Leasecos” means each of Grand Prix Fixed Lessee LLC and Grand Prix Floating Lessee LLC, each a Delaware limited liability company that will be owned by Ink III. “QIB” means a “qualified institutional buyer” within the meaning of Rule 144A under the 1933 Act. “Regulations” means the federal income tax regulations promulgated by the Treasury Department under the Code, as such regulations may be amended from time to time. All references herein to a specific section of the Regulations shall be deemed also to refer to any corresponding provisions of succeeding Regulations. “REIT” means an entity that qualifies as a “real estate investment trust” under Code Sections 856 through 860. “Reorganized Debtors” means the Debtors, after giving effect to their reorganization in accordance with the Plan. “Representative” has the meaning set forth in Section 10.2. “Sell Notice” has the meaning set forth in Section 3.7.   -22- “Senior Foreign Political Figure” means (a) a current or former senior official in the executive, legislative, administrative, military or judicial branches of a non-U.S. government (whether elected or not), a current or former senior official of a major United States political party or a current or former senior executive of a non-U.S. commercial enterprise, (b) a corporation, business or other entity that has been formed by or for the benefit of a Senior Foreign Political Figure; (c) an immediate family member of a Senior Foreign Political Figure; and (d) a close associate of a Senior Foreign Political Figure. For purposes of this definition, a “senior official or “senior executive” means an individual with substantial authority over policy, operations, or the use of government-owned resources. “Subsidiary” of a Person means any corporation, partnership, limited liability company, trust and other entity, whether incorporated or unincorporated, with respect to which such Person, directly or indirectly, legally or beneficially, owns (i) a right to a majority of the profits of such entity; or (ii) securities having the power to elect a majority of the board of directors or similar body governing the affairs of such entity. “Tax Matters Member” has the meaning set forth in Section 8.1. “Termination Event” means (a) the occurrence of a Failed Contribution with respect to (i) any Initial Capital Contribution for which Capital Call has been made in accordance with Section 2.2(a), or (ii) any Capital Contribution (other than an Initial Capital Contribution) for which a Capital Call has been made other than pursuant to Section 2.2(b)(ii), (b) any material breach of Chatham’s obligations hereunder (other than a Failed Contribution), or any gross negligence, willful misconduct or fraud committed by Chatham or any Person affiliated with Chatham in connection with the performance of Chatham’s obligations hereunder, in each case other than such gross negligence, willful misconduct or fraud that, if capable of being Cured, is Cured within thirty (30) days after Chatham receives written notice thereof, provided, that, for all purposes under this Agreement, it shall not be a breach of Chatham’s obligations hereunder if Chatham takes or approves or refrains from taking or approving an action that would be a Major Decision as defined in clause (t) or (u) of the definition thereof as a consequence of taking or approving or refraining from taking or approving any action pursuant to a direction, an affirmative veto or a lack of approval after a specific request therefore, in each case from any Member other than the Managing Member to the extent such other Member is authorized to give such direction, veto or approval, (c) the reduction of Chatham’s Percentage Interest to a percentage of less than 5% hereof, (d) the failure of Jeffrey Fisher to remain as active in the management and business of Chatham REIT as he is as of the date of this Agreement, (e) any direct or indirect Transfer of an interest in Chatham that is not a Transfer permitted under Article V hereof, unless such Transfer, if capable of being Cured, is Cured within thirty (30) days after the occurrence thereof, (f) the failure of Chatham to timely satisfy its binding obligation to sell as a selling Member or to purchase as a purchasing Member, as applicable, under and as set forth in Section 3.7 below, (g) the termination of the Chatham Ink I Member as managing member of Ink I as a result of a Termination Event (for purposes of this clause (g), as defined in the Ink I LLC Agreement), (h) the termination of the Chatham Ink III Member as managing member of Ink III as a result of a Termination Event (for purposes of this clause (h), as   -23- defined in the Ink III LLC Agreement), (i) the termination of the Chatham Ink IV Member as managing member of Ink IV as a result of a Termination Event (for purposes of this clause (i), as defined in the Ink IV LLC Agreement), (j) the termination of the Chatham Ink V Member as managing member of Ink V as a result of a Termination Event (for purposes of this clause (j), as defined in the Ink V LLC Agreement), (k) the termination of the Chatham Ink VI Member as managing member of Ink VI as a result of a Termination Event (for purposes of this clause (k), as defined in the Ink VI LLC Agreement) or (l) the termination of the Chatham Ink VII Member as managing member of Ink VII as a result of a Termination Event (for purposes of this clause (l), as defined in the Ink VII LLC Agreement). “Third Party Claim” has the meaning set forth in Section 11.6. “Transfer” means any direct or indirect sale, assignment, pledge, hypothecation or other transfer or encumbrance of an interest in any Member or any Member’s Interest in the Company, whether by operation of law or otherwise (including, without limitation, the withdrawal of any Person having any direct or indirect interest in any Member), provided that the sale or transfer of capital stock or other equity interests in Chatham REIT or any successor thereto (whether by merger, consolidation or otherwise) shall not be considered a Transfer of any interests in Chatham REIT or its Affiliates, including Chatham, provided further that the sale or transfer of capital stock or other equity interests in Cerberus or any successor thereto (whether by merger, consolidation or otherwise) shall not be considered a Transfer of any interests in Cerberus or its Affiliates so long as Cerberus remains under the management and control of the Persons controlling Cerberus as of the date hereof. “TRS” means an entity that qualifies as a “taxable REIT subsidiary” under Code Section 856(l). “Valuation Amount” has the meaning set forth in Section 3.7. “Voluntary Bankruptcy” has the meaning set forth in the definition of Bankruptcy. “Voting Representative” has the meaning set forth in Section 10.2. “Wind-Down Expenses” has the meaning set forth in Section 3.2(h). Any capitalized term not defined herein shall have the meaning ascribed to such term in the Act. Section 1.7 Certificates. Each Officer of the Company is an authorized Person within the meaning of the Act to execute, deliver and file any certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction within the United States in which the Company may wish to conduct business. Audra Dowless is hereby designated as an “authorized person” within the meaning of the Act, and has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of State of the State of Delaware.   -24- Section 1.8 Term. The term of the Company shall begin on the date the Certificate of Formation was filed with the Secretary of State of the State of Delaware and shall continue until terminated in accordance with the provisions hereof or pursuant to the Act. Section 1.9 Amended Bid. Each of the Initial Members, by executing this Agreement, authorizes and ratifies the execution and delivery by the Company of the Amended Bid, containing the terms set forth in Exhibit B, to purchase the new common membership interests of the Reorganized Debtors and authorizes the Company to (a) enter or cause its Subsidiaries to enter into any other documents necessary to effect the actions contemplated by the Amended Bid; (b) enter, or cause its Subsidiaries to enter, into documents relating to the financing of the purchase of the Business on terms substantially consistent with the Amended Bid, including without limitation, any credit agreement, note purchase agreement or similar financing agreement, and any agreement, document or instrument to be delivered in connection with such financing; and (c) open, and cause its Subsidiaries to open, such bank accounts as shall be necessary or appropriate to conduct the operations of the Business. All actions taken by the Company prior to the Closing Date in connection with any of the foregoing are hereby ratified in all respects. Section 1.10 Property Companies. To the extent the Company at any time acquires a Property directly rather than acquiring the equity interests of the current owner of a Property, the Company shall, at the election of the Initial Members, form one or more Property Companies to take title to all or any portion of any such Property or Properties. It is expressly understood that to the extent Properties are acquired through the acquisition of the equity interests of a Property Company, or the Company is directed pursuant to this Section 1.10 to utilize one or more Property Companies for any Properties, the Company shall conduct all of its business with respect to such Properties through such Property Company(ies); provided, however, that the organizational documents of the Property Companies shall provide (and the current organizational documents of all existing Property Companies acquired directly or indirectly by the Company shall be amended as necessary to provide) that the decisions of such Property Companies shall be made by the Company pursuant to the terms of this Agreement. The Managing Member shall perform, with no additional compensation, substantially identical services for each Property Company as the Managing Member performs for the Company, subject to the terms, conditions, limitations and restrictions set forth in this Agreement. The Managing Member agrees to perform such duties, and, in such circumstances and with regard to such duties, the Managing Member shall be subject to the same standards of conduct and shall have the same rights and obligations with regard to such duties performed or to be performed on behalf of any such Property Company as are set forth in this Agreement with regard to substantially identical services to be performed for or on behalf of the Company. Without limiting the generality of the foregoing, the Members agree to make such non-economic changes as any Lender(s) may require with respect to this Agreement and/or to the organizational documents of the Property Companies, including, without limitation, the addition of a non-member manager and/or independent director to the structure of any Property Company to the extent not already in place.   -25- Section 1.11 Liability of Members. (a) No Member shall have any duty to any other Member or to the Company beyond those specifically set forth in this Agreement. (b) Except as otherwise expressly provided in the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company or of any other Member solely by reason of being a member of the Company. Except as otherwise expressly provided in the Act, the liability of each Member to the Company shall be limited to the amount of Capital Contributions required to be made by such Member, from time to time, in accordance with the provisions of this Agreement. (c) Except as otherwise provided in this Agreement or under applicable Laws or Regulations, the Members shall not be required to lend any funds to the Company or, after its Capital Contributions shall have been made, to make any further contributions to the Company or to repay to the Company, any Member or any creditor of the Company all or any portion of any negative amount in their respective Capital Accounts. Subject to the terms of this Agreement, the Managing Member may, on behalf of the Company or any of its Subsidiaries, at any time and from time to time, apply for and secure one or more Loans, in such amounts, at such rates and on such other terms as are set forth in the then-applicable Operating Budget and then-applicable Business Plan or as may be agreed by the Members then permitted to approve Major Decisions. The Company shall use commercially reasonable efforts to either obtain such Loan(s) on a nonrecourse basis or to have such Loan(s) provide that any liability for customary recourse “carveouts” will be limited to the Company and its assets; provided, however, that if such efforts are unsuccessful, each of Cerberus and Chatham shall execute and deliver (or cause one of its Affiliates to execute and deliver) a Carveout Guaranty providing for recourse to such Person solely with respect to actions or omissions affirmatively taken or consented to or approved by such Person or its Affiliates (other than the Company and its Subsidiaries) to each Lender requiring such a guaranty in connection with its Loan, it being understood and agreed that the parties will seek for such Carveout Guaranties to be several so that (A) the Chatham Carveout Guaranty will cap Chatham’s exposure under such guaranty by an amount equal to Chatham’s Percentage Interest of such potential aggregate guaranty exposure (the “Chatham Cap”) and (B) the Cerberus Carveout Guaranty will cap Cerberus’s exposure under such guaranty by an amount equal to Cerberus’s Percentage Interest of such potential aggregate guaranty exposure (the “Cerberus Cap”); provided, however, if such Lender requires a joint and several Carveout Guaranty from Chatham and Cerberus or requires a guaranty from Cerberus but not Chatham or Chatham but not Cerberus, then, subject to the following proviso, Cerberus or Chatham, as the case may be, as guarantor, may seek contribution and repayment from the other party in accordance with the contribution agreement annexed hereto as Exhibit C so that Chatham’s and Cerberus’s exposure under the Carveout Guaranty shall not exceed each of the Chatham Cap and Cerberus Cap, respectively; and, provided further, that: (i) if the guarantor under any Carveout Guaranty (the “Carveout Guarantor”) incurs or suffers any guaranty obligations or liabilities as a result of a default or breach of any covenant with respect to any of the Loan(s) that is (x) directly and   -26- immediately caused by such Carveout Guarantor through an action or omission taken without the affirmative consent or approval of the Members other than any Affiliate of such Carveout Guarantor, or (y) directly and immediately caused by a breach or default by such Carveout Guarantor of its obligations under such Carveout Guaranty, then such Carveout Guarantor shall be liable for 100% of all such obligations and liabilities, without any right of contribution against the Company or any of its Members, and, in addition, such Carveout Guarantor shall indemnify the Company, and the Members that are not Affiliates of such Carveout Guarantor for any and all losses, costs, liabilities and damages which the Company or such Members may incur or suffer by reason or such conduct on the part of such Carveout Guarantor; (ii) if a Carveout Guarantor incurs or suffers any guaranty obligations or liabilities as a result of a default or breach of any covenant with respect to any of the Loan(s) that is attributable solely to a breach of this Agreement by any Member other than such Carveout Guarantor or its Affiliates, then such Member shall be liable for 100% of all such obligations and liabilities, without any right of contribution against the Company or any of its Members, and, in addition, such Member shall indemnify the Company, the Carveout Guarantor and the Members that are not Affiliates of such Member against any and all losses, costs, liabilities and damages which the Company, the Carveout Guarantor or such other Members may incur or suffer by reason of such conduct on the part of such Member; and (iii) if any Carveout Guarantor incurs or suffers any obligations or liabilities under a Carveout Guaranty that are (x) not directly and immediately caused by such Carveout Guarantor through an action or omission taken without the affirmative consent or approval of the Members other than any Affiliate of such Carveout Guarantor, (y) not directly and immediately caused by a breach or default by such Carveout Guarantor of its obligations under such Carveout Guaranty, or (z) attributable solely to a breach of this Agreement by any Member other than such Carveout Guarantor or its Affiliates, in addition to any rights the Carveout Guarantor may have under the contribution agreement with respect to such Carveout Guaranty, such Carveout Guarantor shall be entitled to seek reimbursement and indemnification from the Company with respect to all such obligations and liabilities. Except as otherwise provided in clauses (i)-(ii) above and subject to the second and third provisos of this Section 1.11(c), all obligations or liabilities which are incurred or suffered, at any time and from time to time, by any guarantor under a Carveout Guaranty shall be subject to repayment pursuant to the contribution agreement annexed hereto as Exhibit C. Unless approved by the Members, the terms of each and every Loan shall be such that neither the Loan nor any amounts due thereunder are of the type described in Section 514(c)(9)(B)(ii) of the Code.   -27- ARTICLE II. PERCENTAGE INTERESTS, CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS Section 2.1 Percentage Interests. Each Member will receive a Percentage Interest in the Company for such Member’s Capital Contributions. Section 2.2 Capital Contributions. (a) Initial Contributions. During the period commencing on the date hereof and ending on the Closing Date, Cerberus and Chatham shall make one or more Capital Contributions (collectively, the “Initial Capital Contributions”) in respect of their respective Initial Capital Contribution Amounts pursuant to Capital Calls issued from time to time in accordance with this Section 2.2 to fund (i) on the Closing Date, the Company’s portion of the purchase price under the Amended Bid (taking into account any deposits previously funded by the Company and/or its Affiliates), and (ii) any other closing costs, fees and expenses incurred in connection with the transactions contemplated by the Plan and the Amended Bid, including with respect to any Loans. All such Initial Capital Contributions shall be made pro rata by Cerberus and Chatham in proportion to their relative Initial Capital Contribution Amounts. Notwithstanding anything in this Agreement to the contrary, the aggregate amount of Chatham’s Initial Capital Contribution plus the Chatham Ink I Member’s aggregate Ink I Initial Capital Contribution, the Chatham Ink III Member’s aggregate Ink III Initial Capital Contribution, the Chatham Ink IV Member’s aggregate Ink IV Initial Capital Contribution, the Chatham Ink V Member’s aggregate Ink V Initial Capital Contribution, the Chatham Ink VI Member’s aggregate Ink VI Initial Capital Contribution and the Chatham Ink VII Member’s aggregate Ink VII Initial Capital Contribution shall not exceed the lesser of $37,000,000 and 12.5% of the aggregate Capital Contributions, Ink I Capital Contributions, Ink III Capital Contributions, Ink IV Capital Contributions, Ink V Capital Contributions, Ink VI Capital Contributions and Ink VII Capital Contributions (the “Chatham Cap”). In the event that Chatham’s ratable share of all Initial Capital Contributions required to be made pursuant to this Section 2.2 plus the sum of (u) the Chatham Ink I Member’s aggregate Ink I Initial Capital Contributions required to be made pursuant to Section 2.2 of the Ink I LLC Agreement, (v) the Chatham Ink III Member’s aggregate Ink III Initial Capital Contributions required to be made pursuant to Section 2.2 of the Ink III LLC Agreement, (w) the Chatham Ink IV Member’s aggregate Ink IV Initial Capital Contributions required to be made pursuant to Section 2.2 of the Ink IV LLC Agreement, (x) the Chatham Ink V Member’s aggregate Ink V Initial Capital Contributions required to be made pursuant to Section 2.2 of the Ink V LLC Agreement, (y) the Chatham Ink VI Member’s aggregate Ink VI Initial Capital Contributions required to be made pursuant to Section 2.2 of the Ink VI LLC Agreement and (z) the Chatham Ink VII Member’s aggregate Ink VII Initial Capital Contributions required to be made pursuant to Section 2.2 of the Ink VII LLC Agreement, would exceed the Chatham Cap, such excess contribution amount shall be funded by Cerberus and Cerberus’ Percentage Interest shall be appropriately increased to reflect its relative contribution to the total amount of Initial Capital Contributions made pursuant to this Section 2.2. In the event that Cerberus or Chatham does not fund its pro rata portion of any Initial Capital Contribution, (x) in the case of Cerberus,   -28- Chatham may, on behalf of the Company, enforce the commitment made by Cerberus Series Four Holdings LLC (“Cerberus Series Four”), or (y) in the case of Chatham, Cerberus may, on behalf of the Company, enforce the commitment made by Chatham REIT, in each case in Cerberus Series Four’s or Chatham REIT’s, as applicable, capacity as a Plan Sponsor (as defined in the Amended Bid) to provide equity capital as set forth, and on the terms and conditions contained in, the Amended Bid. (b) Additional Capital Contributions. (i) Subject to the terms and conditions of this Agreement, the Managing Member may issue Capital Calls at any time and from time to time if additional capital is required for the conduct of the business of the Company (including without limitation to fund costs and expenses that would be treated as capital expenditures under GAAP), each Member shall be required to contribute its pro rata share of such additional capital in proportion to its Percentage Interest. (ii) Notwithstanding anything in this Agreement to the contrary, Cerberus shall have the right, at any time and from time to time, to make a Capital Call, in lieu of allowing the Managing Member to make such Capital Call, or to require the Managing Member to make a Capital Call at the direction of Cerberus and, in either such event, shall not be subject to the conditions and restrictions which would otherwise apply to a Capital Call made by the Managing Member, if Cerberus determines in good faith that the Company requires additional capital to maintain the Properties or otherwise satisfy its existing obligations. (c) Payment of Capital Contributions. Capital Contributions by the Members shall be made in U.S. dollars by wire transfer of federal funds to an account or accounts of the Company specified by the Company. Except as otherwise provided herein, no Member shall be entitled to any compensation by reason of its Capital Contribution or by reason of serving as a Member. No Member shall be required to lend any funds to the Company. (d) Failure to Fund Capital Contributions. If a Member shall fail to timely make any Capital Contribution required pursuant to this Section 2.2 (such Member being hereinafter referred to as a “Non-Contributing Member”), the Managing Member shall give the other Members notice of the amount not funded by the Non-Contributing Member (such amount being hereinafter referred to as the “Failed Contribution”), and if one or more of such other Members shall have funded its ratable share of the Capital Contribution in question (each a “Contributing Member” and collectively, the “Contributing Members”), each Contributing Member shall have the right to fund its pro rata portion of such Failed Contribution (such amount of all or any part of a Failed Contribution funded by such Contributing Member, the “Funded Amount”), and elect, at its sole election, to (i) treat the Funded Amount as an unsecured loan to the Company (a “Member Loan”), repayable solely out of available cash, and bearing interest at the rate of 15% per annum, compounded monthly as of the end of each calendar month, or (ii) treat such Funded Amount as a Capital Contribution by such Contributing Member, in which event (A) such Contributing Member’s Capital Contribution and Capital Account shall be increased by 115% of such Contributing Member’s Funded Amount, and (B) the Percentage Interest of such Contributing Member shall be increased by such Funded Amount (valued in accordance with the value of Percentage Interests as of the date hereof) and the Percentage Interest of the Non-Contributing Member shall be correspondingly decreased. Any Member Loan shall be   -29- secured by a lien in favor of the Contributing Member(s) on the interests of the Non-Contributing Member that owes such obligations. Any Contributing Member or Members electing to treat its Funded Amount as a Member Loan shall receive all distributions payable to the Non-Contributing Member pursuant to Section 7.1 below until such time as the Member Loan shall be paid in full (including all interest thereon); provided that if more than one Contributing Member has made a Member Loan in respect of such Non-Contributing Member’s Failed Contribution, each such Contributing Member shall receive its proportionate share of all such distributions based on such Contributing Member’s Member Loan as compared to all Member Loans made in respect of such Failed Contribution. In the event that one or more Contributing Members elect to treat their respective Funded Amounts as capital contributions and the Non-Contributing Member subsequently contributes all or any portion of the Failed Contribution amount to the Company pursuant to the 15-day cure period in Section 3.6(a) below, (x) such contributed amount shall be distributed to the Contributing Member(s) pro rata in accordance with their respective Funded Amounts, and (y)(I) the Contributing Members’ Percentage Interests shall be decreased by such distribution in respect of its Funded Amount and (II) the Non-Contributing Member’s Percentage Interest shall be correspondingly increased. Section 2.3 Capital Accounts. (a) Capital Accounts. A capital account (“Capital Account”) shall be maintained for each Member in accordance with this Section 2.3. Without limiting the generality of the foregoing, a Member’s Capital Account shall be increased by (i) the amount of money contributed by the Member to the Company, (ii) the initial Gross Asset Value of property contributed by the Member to the Company, as determined by the contributing Member and the Managing Member (net of liabilities that the Company is considered to assume or take subject to pursuant to Code Section 752), (iii) allocations to the Member of Profits pursuant to Article VI, and (iv) the amount of any Company liability assumed by such Member. A Member’s Capital Account shall be decreased by (x) the amount of money distributed to the Member, (y) the Gross Asset Value of any property so distributed to the Member as determined by the distributee Member and the Managing Member (net of any liabilities that such Member is considered to assume or take subject to pursuant to Code Section 752), and (z) allocations to the Member of Losses pursuant to Article VI. (b) Negative Capital Account. No Member shall be required to make up a deficit balance in such Member’s Capital Account or to pay to any Member the amount of any such deficit in any such account. (c) Credit of Capital Contribution. For purposes of computing the balance in a Member’s Capital Account, no credit shall be given for any Capital Contribution which such Member is to make until such Capital Contribution is actually made. (d) Transfer. In the event of a Transfer of all or a portion of a Member’s interest in the Company in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferring Member to the extent it relates to the Transferred interest.   -30- Section 2.4 Admission of New Members. Unless otherwise permitted under Article V, new Members may only be admitted to membership in the Company with the approval of Cerberus and Chatham. A new Member must agree in writing to be bound by the terms and provisions of the Certificate of Formation and this Agreement, each as may be amended from time to time, and must execute a counterpart of, or an agreement adopting, this Agreement or other related agreements as Cerberus and Chatham may require. Upon admission, the new Member shall have all rights and duties of a Member of the Company; provided, however, that such new Member shall only be entitled to such voting rights as are expressly provided pursuant to this Agreement. Section 2.5 Interest. No interest shall be paid or credited to the Members on their Capital Accounts or upon any undistributed amounts held by the Company. Section 2.6 Capital Withdrawal Rights, Interest and Priority. Except as expressly provided in this Agreement, no Member shall be entitled to withdraw or reduce such Member’s Capital Accounts in whole or in part until the dissolution, liquidation and winding-up of the Company, except to the extent that distributions pursuant to Article VII represent returns of capital. A Member who withdraws or purports to withdraw as a Member of the Company without the consent of all of the Initial Members or as otherwise allowed by this Agreement shall be liable to the Company for any damages suffered by the Company on account of the breach and shall not be entitled to receive any payment in respect of its Percentage Interest in the Company or a return of its Capital Contribution until the time otherwise provided herein for distributions to Members. ARTICLE III. MANAGEMENT OF THE COMPANY Section 3.1 Company Governance. Each Member and the Company hereby agree that the Business and the Company shall be governed by the provisions of this Article III and that, accordingly, the Company shall cause its Subsidiaries to act in accordance with the determinations of the Company made pursuant to this Article III. (a) The Company shall generally be managed by the Managing Member, who shall have the overall responsibility for the management, operation and administration of the Company. The Managing Member is, to the extent of its rights and powers set forth in this Agreement, an agent of the Company and the actions of the Company by and through the Managing Member taken in accordance with such rights and powers shall bind the Company. Except as authorized by the Managing Member or as set forth in this Agreement, no Member shall participate in the management and control of the Business or the Company nor shall any Member have the right or authority to act on behalf of the Company in connection with any matter. (b) Limitation on Liability of Managing Member. The Managing Member shall not, solely by reason of being Managing Member, be personally liable for the expenses, liabilities or obligations of the Company whether arising in contract, tort or otherwise.   -31- (c) Compensation and Reimbursement. (i) Not less than five days before the first Business Day of each month, Chatham, the Chatham Ink I Member, the Chatham Ink III Member, the Chatham Ink IV Member, the Chatham Ink V Member, the Chatham Ink VI Member and the Chatham Ink VII Member shall provide the Members with a notice setting forth (x) its good faith estimate of the expenses that it will incur for such month in connection with its duties in its capacity as Managing Member of the Company, Chatham Ink I Member’s duties in its capacity as managing member of Ink I, Chatham Ink III Member’s duties in its capacity as managing member of Ink III, Chatham Ink IV Member’s duties in its capacity as managing member of Ink IV, Chatham Ink V Member’s duties in its capacity as managing member of Ink V, Chatham Ink VI Member’s duties in its capacity as managing member of Ink VI and Chatham Ink VII Member’s duties in its capacity as managing member of Ink VII including, without limitation, Chatham’s, Chatham Ink I Member’s, Chatham Ink III Member’s, Chatham Ink IV Member’s, Chatham Ink V Member’s, Chatham Ink VI Member’s and/or Chatham Ink VII Member’s reasonable costs and expenses of any Chatham Company Personnel, less (y) any amounts paid to Chatham, the Chatham Ink I Member, the Chatham Ink III Member, the Chatham Ink IV Member, the Chatham Ink V Member, the Chatham Ink VI Member and/or the Chatham Ink VII Member previously in respect of a Monthly Expense Amount in excess of expenses actually incurred by Chatham, the Chatham Ink I Member, the Chatham Ink III Member, the Chatham Ink IV Member, the Chatham Ink V Member, the Chatham Ink VI Member and/or the Chatham Ink VII Member for such month, plus (z) any expenses actually incurred Chatham Ink VII Member previously with respect to a given month exceeding the Monthly Expense Amount for such month (together, the “Monthly Expense Amount”). So long as neither Chatham nor any of its Affiliates is in material default of its obligations under this Agreement, the Ink I LLC Agreement, the Ink III LLC Agreement, the Ink IV LLC Agreement, the Ink V LLC Agreement, the Ink VI LLC Agreement or the Ink VII LLC Agreement and such material default has not been cured within thirty (30) days after written notice of such material default is delivered to Chatham by any other Member, and provided that Chatham has not been removed as the Managing Member pursuant to Section 3.2(h), the Chatham Ink I Member has not been removed as the Managing Member of Ink I pursuant to Section 3.2(h) of the Ink I LLC Agreement, the Chatham Ink III Member has not been removed as the Managing Member of Ink III pursuant to Section 3.2(h) of the Ink III LLC Agreement, the Chatham Ink IV Member has not been removed as the Managing Member of Ink IV pursuant to Section 3.2(h) of the Ink IV LLC Agreement, the Chatham Ink V Member has not been removed as the Managing Member of Ink V pursuant to Section 3.2(h) of the Ink V LLC Agreement, the Chatham Ink VI Member has not been removed as the Managing Member of Ink VI pursuant to Section 3.2(h) of the Ink VI LLC Agreement and the Chatham Ink VII Member has not been removed as the Managing Member of Ink VII pursuant to Section 3.2(h) of the Ink VII LLC Agreement, the Company shall pay to Chatham in its capacity as Managing Member (or, at the written direction of Chatham, to a designated Affiliate of Chatham), on the first Business Day of each month or as promptly as practicable thereafter, an amount equal to the Company’s portion, determined based on the relative number of hotels owned by each of the Company, Ink I, Ink IV, Ink V, Ink VI and Ink VII, of the Monthly Expense Amount submitted for such month (the “Expense Reimbursement”).   -32- (ii) Except as expressly set forth in clause (i) above or in any separate agreement between the Managing Member and the Company, the Managing Member shall not receive compensation or reimbursement of its expenses for its services performed on behalf of the Company or other benefits it provides to the Company. (iii) At any time in connection with its review of Chatham’s proposed Monthly Expense Amount for any month, Cerberus may in its reasonable discretion require that Chatham eliminate the position(s) associated with particular Chatham Company Personnel and no longer include the costs associated with such position(s) as part of Chatham’s Monthly Expense Amount, beginning with the Monthly Expense Amount that is three months after Chatham is notified of such requirement from Cerberus; provided, that the Managing Member shall be permitted to include in the applicable Monthly Expense Amount for the month in which such expenses are to be paid all severance and related costs incurred in connection with the termination of such Chatham Company Personnel at Cerberus’ request, to the extent the grant to such terminated Chatham Company Personnel of such severance obligation was approved by Cerberus, the Cerberus Ink I Member, the Cerberus Ink III Member, the Cerberus Ink IV Member, the Cerberus Ink V Member, the Cerberus Ink VI Member or the Cerberus Ink VII Member at the time of grant. Section 3.2 Authority, Duties and Obligations of the Managing Member. (a) The Member designated as the Managing Member (i) shall conduct and manage the day-to-day affairs of the Company in accordance with (A) the standard of care required of prudent and experienced joint venture managers and of third party asset and property managers performing similar functions for similar properties, (B) customary industry standards, and (C) the then-approved Operating Budget and the then-approved Business Plan, in each case subject to the limitations on the Managing Member’s authority and the rights granted solely to other Members set forth in this Agreement; (ii) shall perform the duties assigned to it hereunder; and (iii) shall use its best efforts to carry out all decisions permitted to be made unilaterally by Cerberus pursuant to this Agreement. In addition to the foregoing, the authority of the Managing Member shall be limited where (x) any Member’s consent or approval is expressly required under this Agreement, (y) the consent or approval of any of the Members is expressly required by a non-waivable provision of applicable law, or (z) the Managing Member’s authority is otherwise limited or rights are otherwise granted solely to other Members by the terms of this Agreement. (b) In furtherance of the foregoing, and subject in each case to the terms of this Agreement, including the restrictions on the Managing Member set forth in Section 3.6(b), the Managing Member shall (i) use commercially reasonable efforts to enforce all agreements entered into by the Company; (ii) use commercially reasonable efforts to cause the Company at all times to perform and comply with the provisions (including, without limitation, any provisions requiring the expenditure of funds) of any loan commitment, agreement, mortgage, lease or other contract, instrument or agreement to which the Company is a party or which affects any Property; (iii) subject to the availability of the funds therefor, pay in a timely manner all non-disputed operating expenses of the Company in accordance with the terms of the then-approved Operating Budget and the then-approved Business Plan; (iv) subject to the availability of the funds therefor, obtain and maintain   -33- insurance coverage with respect to the Properties, at customary levels and in any event consistent with the requirements of any Loans, and, subject to the availability of the funds therefor, pay all non-disputed taxes, assessments, charges and fees payable in connection with the ownership, operation and sale of the Properties; (v) devote sufficient time to the performance of its duties hereunder in accordance with good industry practice and this Agreement; and (vi) provide Cerberus with copies of all material correspondence and other communications with any Lender pertaining to any Loan, as and when the same are delivered or received. (c) The Managing Member hereby covenants and agrees that it shall cause its personnel, including all Chatham Company Personnel, to perform and/or supervise the performance of, as applicable, all of the day-to-day activities and/or duties required of the Managing Member under the terms of this Agreement; and (ii) no Chatham Company Personnel shall spend any business time as an employee of Chatham on any project(s) other than the Business of Ink I, Ink III, Ink IV, Ink V, Ink VI, Ink VII, the Company and their respective Subsidiaries. (d) Promptly following any request therefor by any Initial Member, the Managing Member shall deliver to such Initial Member a counterpart copy of any agreement, certificate or other document executed and delivered by the Managing Member in the name of or on behalf of the Company, and shall otherwise make available to any Initial Member all of the books and records of the Company that are in the possession or control of the Managing Member during reasonable business hours; provided, that from and after the occurrence of a Termination Event, this paragraph (d) shall apply only to the Cerberus Initial Members, and the Chatham Initial Members shall no longer have any of the rights set forth in this (e) Provided that Chatham has not been removed as the Managing Member pursuant to Section 3.2(g) hereof, Jeffrey Fisher and the other officers of the Managing Member shall at all times oversee the fulfillment of the duties of the Managing Member hereunder. Except as expressly provided or permitted herein, the Managing Member shall not delegate any of its rights or powers to manage and control the business and affairs of the Company without the prior written consent of Cerberus. (f) The Managing Member hereby covenants and agrees that it shall not hold itself out to any third party as having any authority to act for or on behalf of the Company, or to bind the Company in any manner, other than to the extent that such authority is expressly granted to the Managing Member in Section 3.2(a) or otherwise granted herein or in writing by Cerberus. The Managing Member hereby acknowledges and agrees that notwithstanding anything set forth in this Section 3.2 to the contrary, the Managing Member shall not have any authority to act on behalf of the Company or to execute any documents, agreements or instruments on behalf of the Company other than to the extent that such authority is set forth in Section 3.2(a) or otherwise expressly granted under this Agreement or in writing by Member, and the Managing Member, acting in such capacity, shall be subject, in all events, to the then-approved Operating Budget and Business Plan of the Company.   -34- (g) Notwithstanding anything set forth in Section 3.2(a)-(h) hereof to the contrary, Cerberus shall have the power and authority, on behalf of the Company, to request, authorize and approve each of the following without the approval or consent of any other Member: (i) Compel, cause and undertake the liquidation of the Company and take all actions related thereto, including the disposition of all then remaining Properties, at any time following April 25, 2016, so long as such liquidation will not (A) cause a default under any then existing Loan Documents, (B) cause Chatham to incur or suffer any recourse liability under any then existing Loan Documents (including, without limitation, any Carveout Guaranty given by Chatham or any of its Affiliates), (C) cause the Company or any of its Members (or any of their respective Affiliates) to become the subject of a Bankruptcy, or (D) jeopardize the TRS status of Chatham; provided, however, that Cerberus shall keep the other Initial Members reasonably informed of any material actions undertaken pursuant to this clause (i) with respect to intended, planned or pending dispositions; (ii) Demand and receive an updated Operating Budget and Business Plan from the Managing Member, at any time and from time to time but in any event no more than once each fiscal quarter, together with such other reporting items or information as Cerberus may reasonably require; (iii) Audit the books and records of the Company and any Property Companies; provided, however, that the Company shall only be required to pay for one such audit per calendar year, and any additional audits requested by Cerberus in any given calendar year shall be paid for by Cerberus; (iv) Compel, cause and undertake the disposition of any Property in an arms length transaction to any Person other than Cerberus or an Affiliate of Cerberus, so long as such disposition will not (A) cause a default under any then existing Loan Documents, (B) cause Chatham to incur or suffer any recourse liability under any then existing Loan Documents (including, without limitation, any Carveout Guaranty given by Chatham or any of its Affiliates), (C) cause the Company or any of its Members (or any of their respective Affiliates) to become the subject of a Bankruptcy, or (D) jeopardize the TRS status of Chatham; provided, however, that Cerberus shall keep the other Initial Members reasonably informed of any material actions undertaken pursuant to this clause (iv) with respect to intended, planned or pending dispositions; (v) Take any action which may be reasonably necessary for the continuation of the Company’s valid existence as a limited liability company under the laws of the State of Delaware; provided, however, that Cerberus shall keep the Managing Member reasonably informed of any material actions undertaken pursuant to this clause (v); and (vi) Approve any restructuring plan or take or refrain from taking any other action relating to the restructuring of the Company, any Property or any Loan, so long as such restructuring will not (A) cause a default under any then any Carveout Guaranty given by Chatham or   -35- their respective Affiliates) to become the subject of a Bankruptcy, (D) jeopardize the TRS status of Chatham, or (E) be more adverse to any Member other than Cerberus than it is to Cerberus; provided, that the restrictions contained in this clause (E) shall not apply to a restructuring of the Company, any Property or any Loan to the extent Cerberus has made a good faith determination that such restructuring is reasonably necessary to avoid, or mitigate the effects of, an existing default or an impending or imminent default under any Loan or franchise agreement and that the disproportionately adverse impact is reasonably necessary to consummate the restructuring on terms that, in Cerberus’ good faith judgment, are in the aggregate most favorable to the Company; provided, further, that Cerberus shall keep the Managing Member reasonably informed of any material actions undertaken pursuant to this clause (vi). (h) Upon the occurrence of a Termination Event, Cerberus shall have the right, in its sole and absolute discretion, to remove Chatham as Managing Member hereunder; provided, that if Cerberus removes Chatham as Managing Member as a result of (1) an event described in clause (b) of the definition of Termination Event, (2) an event described in clause (g) of the definition of Termination Event based on the Chatham Ink I Member being removed as managing member of Ink I as a result of an event described in clause (b) of the definition of “Termination Event” contained in the Ink I LLC Agreement, (3) an event described in clause (h) of the definition of Termination Event based on the Chatham Ink III Member being removed as managing member of Ink III as a result of an event described in clause (b) of the definition of “Termination Event” contained in the Ink III LLC Agreement, (4) an event described in clause (i) of the definition of Termination Event based on the Chatham Ink IV Member being removed as managing member of Ink IV as a result of an event described in clause (b) of the definition of “Termination Event” contained in the Ink IV LLC Agreement, (5) an event described in clause (j) of the definition of Termination Event based on the Chatham Ink V Member being removed as managing member of Ink V as a result of an event described in clause (b) of the definition of “Termination Event” contained in the Ink V LLC Agreement, (6) an event described in clause (k) of the definition of Termination Event based on the Chatham Ink VI Member being removed as managing member of Ink VI as a result of an event described in clause (b) of the definition of “Termination Event” contained in the Ink VI LLC Agreement or (7) an event described in clause (l) of the definition of Termination Event based on the Chatham Ink VII Member being removed as managing member of Ink VII as a result of an event described in clause (b) of the definition of “Termination Event” contained in the Ink VII LLC Agreement, (x) Chatham shall no longer be entitled to any distributions of any Promoted distributions contemplated hereby), and (y) Chatham shall not be entitled to receive reimbursement of any Wind-Down Expenses (as defined below). In the event that Cerberus removes Chatham as Managing Member pursuant to this Section 3.2(h), (i) Cerberus shall have the right, in its sole and absolute discretion, to either become or designate an Affiliate to become the Managing Member of the Company or cause the Company to engage a third-party manager for the Company’s business, (ii) the consent of Chatham shall no longer be necessary for any Major Decision other than a Post-Termination Major Decision, and (iii) except as set forth above, upon its removal as Managing Member, Chatham may submit to the Company and the other Members a good faith estimate of the amount of expenses (the “Wind-Down Expenses”) it will reasonably incur in connection with the wind-down of its duties in its capacity as Managing Member, including without limitation Approved Severance Costs, together with reasonably detailed backup for such estimate, and the   -36- Company will promptly pay such amount to Chatham (or, at the written direction of Chatham, to a designated Affiliate of Chatham); provided, that in no event shall the Company be required to pay to Chatham under this Section 3.2(h) Wind-Down Expenses that, when aggregated with the Wind-Down Expenses payable by Ink I pursuant to Section 3.2(h) of the Ink I LLC Agreement, the Wind-Down Expenses payable by Ink III pursuant to Section 3.2(h) of the Ink III LLC Agreement, the Wind-Down Expenses payable by Ink IV pursuant to Section 3.2(h) of the Ink IV LLC Agreement, the Wind-Down Expenses payable by Ink V pursuant to Section 3.2(h) of the Ink V LLC Agreement, the Wind-Down Expenses payable by Ink VI pursuant to Section 3.2(h) of the Ink VI LLC Agreement and the Wind-Down Expenses payable by Ink VII pursuant to Section 3.2(h) of the Ink VII LLC Agreement, exceed $500,000 unless such excess amounts result from liabilities or obligations incurred in accordance with the applicable Operating Budget and Business Plan as approved by Cerberus, the Cerberus Ink I Member, the Cerberus Ink III Member, the Cerberus Ink IV Member, the Cerberus Ink V Member, the Cerberus Ink VI Member or the Cerberus Ink VII Member at the time of incurrence as potential Wind-Down Expenses, or as otherwise approved in writing by Cerberus Ink VII Member as potential Wind-Down Expenses. may rely (without duty of further inquiry) upon a certificate issued by the Company that is signed by the Managing Member or any of the Officers as to any of the following: (a) the identity of any Member or Officer or other agent of the Company; (b) the existence or nonexistence of any fact or facts which constitute(s) a condition precedent to acts by the Managing Member or the Members; (c) the Person or Persons authorized to execute and deliver any instrument or document of the Company; or (d) any act or failure to act by the Company or any other matter whatsoever involving the Company. Section 3.4 Officers. (a) Principal Officers. The Officers of the Company shall be a President and Chief Executive Officer, and may be a Chief Operating Officer, Chief Financial Officer, Secretary, Treasurer, one or more Vice Presidents, and one or more Assistant Treasurers or Assistant Secretaries. (b) Other Officers. The Managing Member may also appoint such other Officers and agents as it shall deem necessary who shall hold their offices for such terms and shall, subject to the limitations set forth herein, exercise such powers and perform such duties as shall be determined from time to time by the Managing Member. (c) Compensation. The compensation of all Officers and all officers of the Subsidiaries shall be fixed by, and paid by, the Managing Member; provided, however,   -37- that their salaries shall conform to any employment agreement approved by the Members, to the extent required by this Agreement and entered into between the Company or any Subsidiary and any Officer. In no event shall the Company be required to pay any compensation to any Officer. (d) Authority of Officers. (i) The President and Chief Executive Officer (or “President and CEO”) of the Company shall have general and active management of the Company, shall have the responsibility for the day-to-day management and operation of the Company, and shall see that all lawful orders and resolutions are carried out. The President and CEO shall execute bonds, mortgages and other contracts except where the signing and execution shall be expressly delegated by the Members or, to the extent permitted by this Agreement, the Managing Member to one or more other officers or agents of the Company. (ii) If appointed, the Chief Operating Officer, Chief Financial Officer, Vice Presidents, Treasurer, Secretary, Assistant Treasurers and Assistant Secretaries shall have the powers and duties described in this Section 3.4, as may be modified from time to time by the Managing Member:     1) Chief Operating Officer. The Chief Operating Officer shall have responsibility for the day-to-day management and operation of the Business, general oversight of the operation of the Company’s operations and employees, and other such duties and responsibilities as determined by the President and CEO or the Managing Member.     2) Chief Financial Officer. The Chief Financial Officer shall have responsibility for the day-to-day management and general oversight of the accounting and finance function of the Company and supervision of any Treasurer and Assistant Treasurers, and other such duties and responsibilities as determined by the President and CEO, the Chief Operating Officer or the Managing Member.     3) The Vice Presidents. The Vice Presidents shall perform such duties and have such powers as the Managing Member or the President and CEO or the Chief Operating Officer may from time to time prescribe.     4) The Secretary; Assistant Secretary. The Secretary shall attend all meetings of the Members and record all the proceedings of the meetings of the Company and of the Members in a book to be kept for that purpose and shall perform like duties for any standing committees when required. He or she shall give, or cause to be given, notice of all meetings of committees of the Company, and shall perform such other duties as may be prescribed by the Managing Member or the President and CEO, under whose supervision he or she shall be. In the absence of the Secretary or in the event of his or her incapacity or refusal to act, or at the direction of the Secretary, any Assistant Secretary may perform the duties of the Secretary.   -38-   5) The Treasurer; Assistant Treasurer. The Treasurer shall have the custody of the Company’s funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit Company in such depositories as may be designated by the Members. The Treasurer shall disburse the funds of Company as may be ordered by the Members or, to the extent permitted by this Agreement, the Managing Member, President and CEO, Chief Financial Officer or Chief Operating Officer, taking proper vouchers for such disbursements, and shall render to the President and CEO, Chief Operating Officer, Chief Financial Officer and Managing Member, or when any Officer so requires, an account of all transactions as treasurer and of the financial condition of the Company. (e) Limitations on Officer’s Powers. Notwithstanding any other provision contained in this Agreement to the contrary, should a delegation of authority be established by the Managing Member, no act shall be taken, sum expended, decision made, obligation incurred or power exercised by any Officer on behalf of the Company other than in accordance with such delegation of authority. (f) Term of Officers. (i) An Officer may resign at any time by giving written notice to the Managing Member. The resignation of an Officer shall take effect upon the Managing Member’s receipt of written notice of the Officer’s resignation or at such later time as shall be specified in the written notice. Unless otherwise specified in the Officer’s written notice of resignation, the acceptance of the Officer’s resignation shall not be necessary to make it effective. If the Officer also is a Member, the Officer’s resignation as an Officer shall not affect the Officer’s rights as a Member and shall not constitute a withdrawal of the Officer as a Member. (ii) The Managing Member may terminate the employment of and/or remove any Officer with or without cause. (iii) The Managing Member may elect at any time a new or replacement Officer to fill any vacancy. Section 3.5 Operating Budget and Business Plan. (a) For the period beginning on the Closing Date and ending on December 31, 2011, the Company shall operate in accordance with the current Operating Budget (in the form annexed hereto as Exhibit D) prepared by the Debtors and a Business Plan to be mutually agreed by the Members. Thereafter, the Operating Budget and Business Plan shall be prepared and submitted annually by the Managing Member, the Chatham Ink I Member, the Chatham Ink VI Member or the Chatham Ink VII Member (or the Hotel Manager at the direction of the Managing Member) to the Initial Members for approval at least thirty (30) calendar days prior to the end of each fiscal year with respect to the following fiscal year which shall, in the case of the Operating Budget, set forth, inter alia, all anticipated revenues, operating expenses, capital expenditures, renovation budgets, renovation schedules and during such period, and, in the case of the Business Plan shall set forth, inter alia, the Company’s, Ink I’s, Ink III’s,   -39- Ink IV’s, Ink V’s, Ink VI’s and Ink VII’s strategy for the leasing, marketing and operation of each of the Properties and the properties owned by Ink I, Ink IV, Ink V, Ink VI and Ink VII and an estimate of the amount, timing and reason for all anticipated Capital Contributions from the Members during such period; provided, that if the Managing Member should fail to timely prepare and submit in proposed form any such Operating Budget and Business Plan, Cerberus, the the Cerberus Ink V Member, the Cerberus Ink VI Member and/or the Cerberus Ink VII Member shall be authorized to prepare such Operating Budget and Business Plan for the approval of the Initial Members. Whenever the Managing Member determines that revisions to the then-approved Operating Budget or Business Plan would be in the best interests of the Company, the Managing Member may submit such proposed revisions to such Operating Budget and/or Business Plan to Cerberus for its review; provided, however, that all amendments and modifications to the then-approved Operating Budget or Business Plan shall require the approval of Cerberus, which approval may be granted or withheld by Cerberus in its sole and absolute discretion. (b) Notwithstanding Section 3.5(a), in the event that the Initial Members are unable to agree on all or certain provisions of an Operating Budget or Business Plan for a given year, the Managing Member will conduct the business of the Company pursuant to those provisions of such Operating Budget or Business Plan which are agreed-upon and adopted. With respect to any aspects of the business of Company that are not addressed by the Operating Budget or Business Plan for that given year, the Managing Member is authorized and directed to cause the employees of the Company to conduct such aspect of the business of the Company in accordance with the guidelines set forth in the most recently approved Operating Budget or Business Plan, as applicable, and otherwise in accordance with prior practice; provided, however, that, if applicable, the Managing Member may adjust the annual compensation of the Chatham Company Personnel and other expenses of the Company for inflation. Section 3.6 Voting Rights of Members. (a) Members shall have no right or authority to vote on matters other than matters explicitly requiring such vote in this Agreement or in the Act. For matters set forth in this Agreement explicitly requiring a vote of the Initial Members, such matters shall require the vote of all Initial Members. In the event any Initial Member shall transfer less than all of its Percentage Interest to an unaffiliated third party in a transaction or in a series of transactions, then the portion of such Initial Member’s votes that is equal to the portion of such Initial Member’s Percentage Interest transferred shall be deemed cancelled and the transferee (if an unaffiliated third party) in such transfer shall not have the right to vote on any matter as an “Initial Member”. In the event any Initial Member shall transfer its entire Percentage Interest held on the date of such transfer to an unaffiliated third party in a transaction or in a series of transactions, then all of the votes of its Percentage Interest on the date of such transfer shall be deemed to have been transferred to such transferee upon the satisfaction of the conditions contained in Article V and such transferee shall not have the right to vote on any matter as an “Initial Member”. Notwithstanding the foregoing, if at any time a Member (i) shall transfer more than 50% of such Member’s Percentage Interest (excluding, however, transfers made by such Member to a Permitted Transferee), or (ii) shall   -40- be in default with respect to its obligations to fund additional capital contributions pursuant to Section 2.2 above, the remaining votes of such Member shall be deemed cancelled and such Member shall have no voting rights except as otherwise required by the Act; provided, that in the case of clause (ii), (x) to the extent Contributing Member(s) elect to treat their respective Funded Amounts as loans and such Non-Contributing Member repays all such loans (including all interest thereon) within 15 days, the voting rights of such Member shall be reinstated and (y) to the extent the Contributing Member(s) elect to treat their respective Funded Amounts as capital contributions, the Company shall provide notice to such Non-Contributing Member on the next Business Day indicating such election and the voting rights of such Non-Contributing Member shall be deemed cancelled if the Non-Contributing Member does not provide its capital contribution to the Company within 15 days after receipt of such notice. (b) Notwithstanding anything to the contrary in this Agreement, unless expressly set forth in this Agreement (including pursuant to Section 3.2(h) above), the Company shall not approve or take, and neither the Managing Member shall take or cause the Company to take or approve, any action with respect to any Major Decision without the affirmative vote or written consent of all of the Initial Members. Section 3.7 Buy/Sell. At any time on or after April 25, 2013, any Initial Member (a “Notifying Member”) has the right (the “Buy/Sell Right”) to give written notice to the non-notifying Initial Members (each a “Non-Notifying Member”) to require that the Non-Notifying Members (x) buy all, but not less than all, of the Percentage Interest of the Company of the Notifying Member or (y) sell all, but not less than all, of the Non-Notifying Members’ Percentage Interest to the Notifying Member; provided, that no Member shall be entitled to exercise its Buy/Sell Right if, at the time of such Member’s election to so exercise, such Member is in default of any of its obligations hereunder and, provided, further, that if any member of Ink I (an “Ink I Notifying Member”), any member of Ink III (an “Ink III Notifying Member”), any member of Ink IV (an “Ink IV Notifying Member”), any member of Ink V (an “Ink V Notifying Member”), any member of Ink VI (an “Ink VI Notifying Member”) or any member of Ink VII (an “Ink VII Notifying Member”) has exercised its buy/sell right pursuant to Section 3.7 of the Ink I LLC Agreement (the “Ink I Buy/Sell Right”), Section 3.7 of the Ink III LLC Agreement (the “Ink III Buy/Sell Right”), Section 3.7 of the Ink IV LLC Agreement (the “Ink IV Buy/Sell Right”), Section 3.7 of the Ink V LLC Agreement (the “Ink V Buy/Sell Right”), Section 3.7 of the Ink VI LLC Agreement (the “Ink VI Buy/Sell Right”) or Section 3.7 of the Ink VII LLC Agreement (the “Ink VII Buy/Sell Right”), as applicable, the Member(s) that is an Affiliate of the Ink I Notifying Member, Ink III Notifying Member, Ink IV Notifying Member, Ink V Notifying Member, Ink VI Notifying Member or Ink VII Notifying Member, as applicable, shall be required to exercise its Buy/Sell Right hereunder at the same time. The Buy/Sell Right shall be exercised in accordance with the following provisions: (i) The Notifying Member shall deliver to the Non-Notifying Member or Members, as the case may be, a written notice (a “Buy/Sell Notice”) (by both facsimile and certified mail) setting forth (A) its intention to exercise the Buy/Sell Right contained herein, (B) describing all oral or written offers, if any, received by the Notifying Member during the previous twelve calendar months relating to the acquisition, financing or leasing of all or any portion of the Properties. On or before the 20th day following its receipt of a   -41- Buy/Sell Notice, each Non-Notifying Member may notify the Notifying Member (the “Election Notice”) whether it elects either (i) to sell its Percentage Interest for an amount equal to the amount that it would be entitled to receive if the Company had sold its assets for the Valuation Amount (as defined below) on the closing date of the Buy/Sell Right transaction, determined in accordance with Section 3.7(a)(iv) (the “Buy/Sell Closing Date”) and immediately thereafter paid all of its liabilities in full and distributed the net proceeds resulting from such sale to the Members (a “Sell Notice”) or (ii) to buy the Percentage Interest of the Notifying Member at an amount equal to the amount that the Notifying Member would be entitled to receive if the Company had sold its assets for Valuation Amount on the Buy/Sell Closing Date and immediately thereafter paid all of its liabilities in full and distributed the net proceeds resulting from such sale to the Members (a “Buy Notice”). If a Non-Notifying Member fails to deliver an election notice within that time, it will be deemed to have delivered a Sell Notice. Notwithstanding the foregoing, a Non-Notifying Member shall make (and shall be required to make) the same election to buy or to sell under this Section 3.7(i) as such Non-Notifying Member’s Affiliates have made in respect of their Ink I Buy/Sell Right, Ink III Buy/Sell Right, Ink IV Buy/Sell Right, Ink V Buy/Sell Right, Ink VI Buy/Sell Right or Ink VII Buy/Sell Right, as applicable, such that in no event shall a Notifying Member hereunder be required to purchase pursuant to a Buy Notice or required to sell pursuant to a Sell Notice or a deemed Sell Notice, as applicable, unless, in each case, the corresponding Ink I Notifying Member, Ink III Notifying Member, Ink IV Notifying Member, Ink V Notifying Member, Ink VI Notifying Member and Ink VII Notifying Member are also required to purchase pursuant to buy notices delivered in accordance with the Ink I LLC Agreement, Ink III LLC Agreement, Ink IV LLC Agreement, Ink V LLC Agreement, Ink VI LLC Agreement and Ink VII LLC Agreement, or are also required to sell pursuant to sell notices delivered or deemed to be delivered in accordance with the Ink I LLC Agreement, Ink III LLC Agreement, Ink IV LLC Agreement, Ink V LLC Agreement, Ink VI LLC Agreement and Ink VII LLC Agreement, as applicable. (ii) Promptly after a Buy/Sell Notice is delivered, the Notifying Member and the Non-Notifying Member or Members, as the case may be, shall attempt to reach agreement on the value of the assets of the Company as of the Buy/Sell Closing Date, free and clear of all liabilities (the “Valuation Amount”). Within fifteen (15) days after such Buy/Sell Notice is delivered, the Notifying Member on the one hand and the Non-Notifying Member or Members, as the case may be, on the other hand shall submit to the other an estimate of the Valuation Amount. If the estimates vary by ten percent (10%) or less of the greater value, the Valuation Amount shall be determined by calculating the average of the two submitted values. In the event that either the Notifying Member on the one hand and the Non-Notifying Member or Members, as the case may be, on the other hand fail to submit an estimate within the required fifteen (15) day period and if such failure continues for five (5) days after notice of such failure from the other, such failure shall be deemed for all purposes to constitute acceptance of the single estimate submitted in a timely fashion. If the two estimates vary by more than 10%, then such Members shall appoint HVS International or another independent, nationally recognized valuation expert mutually agreeable to such Members as an independent appraiser (the “Independent Appraiser”) to determine the Valuation Amount. The Independent Appraiser shall be instructed to determine the Valuation Amount at least fifteen (15) days prior to the Buy/Sell Closing Date, and the determination of the Independent Appraiser shall be final and binding upon the Members; provided that in no event shall the Valuation Amount as determined by the Independent Appraiser be less than the lowest estimate or greater than the highest estimate   -42- submitted by the Members pursuant to this Section 3.7(a)(ii). In connection with any valuation process, including the generation and submission of estimates to each other by the Members, (A) the Members shall consult with each other to determine what information shall be provided to the Independent Appraiser, (B) the Members shall provide the Independent Appraiser and the other Members full access during normal business hours to examine all pertinent books, records and files, agreements and other operating agreements, and (C) each Member shall provide the other Members with copies of any information, document, file, agreement or data concurrently with its provision to the Independent Appraiser. The fees and expenses of the Independent Appraiser shall be borne by the Company. In the event that the determination of the valuation amount for Ink I (the “Ink I Valuation Amount”), the valuation amount for Ink III (the “Ink III Valuation Amount”), the valuation amount for Ink IV (the “Ink IV Valuation Amount”), the valuation amount for Ink V (the “Ink V Valuation Amount”), the valuation amount for Ink VI (the “Ink VI Valuation Amount”) and/or the valuation amount for Ink VII (the “Ink VII Valuation Amount”) is to be determined by an independent appraiser pursuant to Section 3.7 of the Ink I LLC Agreement, the Ink III LLC Agreement, the Ink IV LLC Agreement, the Ink V LLC Agreement, the Ink VI LLC Agreement and/or the Ink VII LLC Agreement, as applicable, the Members shall appoint the same independent appraiser to determine the Ink I Valuation Amount, the Ink III Valuation Amount, the Ink IV Valuation Amount, the Ink V Valuation Amount, the Ink VI Valuation Amount, the Ink VII Valuation Amount and the Valuation Amount hereunder, and shall instruct such Independent Appraiser to use the same methodology to determine the Ink I Valuation Amount, the Ink III Valuation Amount, the Ink IV Valuation Amount, the Ink V Valuation Amount, the Ink VI Valuation Amount, the Ink VII Valuation Amount and the Valuation Amount hereunder. (iii) If one or more of the Non-Notifying Members deliver or are deemed to have delivered a Sell Notice and one or more Non-Notifying Members deliver or are deemed to have delivered a Buy Notice, then the Notifying Member and each Non-Notifying Member that delivered a Sell Notice will sell their Percentage Interest to the Non-Notifying Member(s) that delivered a Buy Notice, and such Non-Notifying Members shall purchase such Percentage Interests pro rata based on the aggregate Percentage Interest represented by such Non-Notifying Members. Within five (5) Business Days after an election has been made under Section 3.7(a)(i), or, if later, three (3) Business Days after the final Valuation Amount is determined, the purchasing Member shall deposit with the selling Member a non-refundable earnest money deposit in an amount equal to 10% of the amount which the selling Member is entitled to receive for its Percentage Interest hereunder. Such deposit shall be applied to the purchase price due to the selling Member at closing; provided, however, that if the purchasing Member should thereafter fail to consummate the transaction, such deposit shall be retained as liquidated damages by the selling Member, free of all claims of the acquiring Member, and the purchasing Member shall thereafter be permanently barred from initiating the exercise of the Buy/Sell Right pursuant to this Section 3.7. The Members agree that damages would be suffered by the selling Member as a result of any such default on the purchasing Member’s part, that such damages would be difficult or impossible to determine, and that the amount of the deposit represents a reasonable estimate of what such damages would be. (iv) The closing date of the purchase and sale shall be the 90th day after the last Election Notice was received or deemed received, (or if that day is not a Business Day, on the next succeeding Business Day), or if later the fifth Business Day after all   -43- regulatory approvals required for the purchase and sale have been obtain, or at such other time as the Initial Members may agree. At that time (x) the selling Member(s) shall sell, assign, and deliver its Percentage Interest, and the selling Member(s) and their Affiliate(s), as applicable, shall sell, assign, and deliver their respective Percentage Interests so specified to the purchasing Member(s) free and clear of all liens, security interests and adverse claims, together with such instruments of transfer, evidence of the absence of all liens, security interests or adverse claims, and evidence of due authorization, execution, and delivery of all related documentation as the purchasing Member(s) reasonably may request; and (y) the purchasing Member(s) shall pay the selling Member(s) the amount that each would be entitled to receive if the Company had sold its assets for Valuation Amount on the Buy/Sell Closing Date and immediately thereafter paid all of its liabilities in full and distributed the net proceeds resulting from such sale to the Members. Each Member will bear its own costs associated with the purchase and sale. (v) On the closing, each selling Member shall cease to be a member of the Company, and its Percentage Interest shall vest in the purchasing Member(s). (vi) If any Member fails to purchase and pay for any Percentage Interests as and when provided in the preceding provisions of this Section 3.7, then the selling Members may either (A) pro rata based on their respective Percentage Interests or as they otherwise may agree, at their election by notice to the defaulting Member at any time on or before the 30th day after the date the sale was to have been consummated, elect to purchase the Percentage Interest of the Member so defaulting and its Affiliates for a price calculated by multiplying 75% by the amount that the defaulting Member and its Affiliates would be entitled to receive if the Company had sold its assets for Valuation Amount on the Buy/Sell Closing Date and immediately thereafter paid all of its liabilities in full and distributed the net proceeds resulting from such sale to the Members; provided, that the closing of this purchase and sale otherwise shall occur as provided in Section 3.7(iv), but with any time periods measured from the date of the notice under this Section 3.7(vi); or (B) retain the defaulting Member’s earnest money deposit as liquidated damages for such default, the Members hereby acknowledging and agreeing that (1) it would be difficult or impossible to determine the damages suffered by the selling Members on account of the purchasing Member’s default, and (2) the amount of the deposit represents a reasonable estimate of such damages; provided, that in the event that the purchasing Member failed to make its earnest money deposit as required by 3.7(a)(iii) hereof, the selling Members shall have the right, in lieu of receiving liquidated damages pursuant to this Section 3.7(a)(vi), to seek and obtain an award or judgment against the purchasing Member in the amount of the required earnest money deposit, together with any reasonable attorneys’ fees and disbursements incurred in obtaining such award or judgment. (vii) If the selling Member should default in its obligation to sell in accordance with this Section 3.7, the acquiring Member shall be entitled to either (A) demand and receive a return of the earnest money deposit which it previously deposited with the selling Member, and, upon the return of such deposit, the selling Member’s default hereunder shall be deemed to have been waived; provided, however, that if the selling Member fails to return such deposit to the acquiring Member, the purchasing Member shall have the right to seek and obtain an award or judgment against the selling Member in the amount of such deposit, together with any reasonable attorneys’ fees and disbursements incurred in obtaining such award or judgment; or (B) seek specific performance of the selling Member’s obligations under this Section 3.7, the   -44- Members hereby acknowledging and agreeing that the remedy at law for breach of the obligations of the selling Member under this Section 3.7 would be inadequate in view of (x) the impossibility of accurately calculating the damages which would be suffered by the acquiring Member upon a default by the selling Member, and (y) the uniqueness of the Properties. (viii) The preceding provisions of this Section 3.7 shall not apply to any Percentage Interest from and after the first time Percentage Interests are issued or sold through a registered offering under the Securities Act. ARTICLE IV. GENERAL GOVERNANCE Section 4.1 Other Ventures. (a) It is expressly agreed that each Initial Member, and any Affiliates, officers, directors, trustees, managers, stockholders, members, partners or employees of such Initial Member, may engage in other business ventures of every nature and description, whether or not in competition with the Company, independently or with others, and neither the Company nor the other Members shall have any rights in and to any independent venture or activity or the income or profits derived therefrom; the pursuit of other ventures and activities by any such Person is hereby consented to by each Member and shall not be deemed wrongful or improper. (b) Nothing in this Agreement shall be construed so as to prohibit any Member or its respective Affiliates, officers, directors, managers, stockholders, members, partners or employees from owning, operating or investing in any business of any nature and description, independently or with others and no Member need disclose its intention to make any such investment to the other, nor advise the Company of the opportunity presented by any such prospective investment. (c) Notwithstanding the foregoing, in the event that any Member receives an opportunity directly related to any Property, such Member shall first offer such opportunity, to the extent relating to any Property, to Cerberus and Chatham on behalf of the Company. If either Cerberus or Chatham (i) declines on behalf of the Company to participate in such opportunity or (ii) is deemed to decline on behalf of the Company to participate in such opportunity as a result of a failure to approve participation by the Company within 10 Business Days of such offer, but either Chatham or Cerberus, as applicable, as the non-presenting Member wishes to participate in such opportunity in its own capacity, Chatham or Cerberus, as applicable and the presenting Member shall participate in such opportunity on such basis as they shall agree or, in the absence of such agreement, in proportion to their then equity percentages in the Company. If the Company and each Member thereof rejects such opportunity, the presenting Member may exploit such opportunity in any manner it sees fit, provided that the presenting Member is not provided materially more favorable terms in the aggregate with respect to such opportunity than were presented to the Company, or the non-presenting Member in connection with their potential participation.   -45- Section 4.2 Information. The Company covenants and agrees, and the Managing Member shall cause the Company, to deliver to each Member (a) consolidated financial reports of the Company audited by PricewaterhouseCoopers LLP or such other independent accounting firm of national reputation for the Company and its subsidiaries, within 90 days after the end of the Fiscal Year of the Company; (b) consolidated quarterly unaudited financial reports for the Company, setting forth (i) an itemized breakdown of all income and expenses of the Company for such quarter, (ii) a reconciliation of actual revenues and expenses as compared with the projected Budget amounts for such items, together with a detailed explanation of any noted discrepancies, (iii) an update on the progress of the Company’s business as compared to the then-approved Business Plan, and (iv) such other updates and information as may reasonably be requested by Cerberus, within 45 days after the end of each fiscal quarter of the Company; (c) consolidated monthly financial reports for the Company within 30 days after the end of the each month; and (d) such other information and data (including such information and reports made available to any Lender of the Company or any of its Subsidiaries under any credit agreement or otherwise) as from time to time may be reasonably requested by Cerberus. All information provided by the Managing Member pursuant to Sections 4.2 and 4.3 shall be certified by an officer of the Managing Member (or, for so long as Chatham is the Managing Member, by the senior-most employee of Chatham that is a member of the Chatham Company Personnel) as to its truth, completeness and authenticity. Section 4.3 Access. The Company shall, and shall cause its Subsidiaries, Officers, directors, trustees, members, employees, auditors and other agents to (a) afford the Officers, employees, auditors and other agents of the Members during normal business hours and upon reasonable notice reasonable access to its officers, employees, auditors, legal counsel, properties, offices, plants and other facilities and to all books and records and (b) afford each Initial Member the opportunity to discuss the Company’s affairs, finances and accounts with the Officers or Managing Member from time to time as each such Initial Member may reasonably request without creating an undue burden on the Company, including, without limitation, but in particular, upon notice that a vote is required with respect to a Major Decision; provided, that the Company shall not be required to afford any Chatham Initial Member such opportunity from and after the occurrence of a Termination Event except with respect to a Post-Termination Major Decision. Section 4.4 Affiliate Transactions. (a) Neither the Company nor any Property Company shall enter into any agreement for the performance of any service or activity, or for the purchase of any item, with an Affiliate of a Member (other than the Hotel Management Agreements with Island Hospitality Management), without first receiving the prior written approval of the Initial Members, which approval may be withheld in each such Member’s sole and absolute discretion; provided, that, from and after the occurrence of a Termination Event, the prior written approval of the Chatham Initial Members shall no longer be required so long as any such arrangement is on an arms’ length basis. (b) Notwithstanding anything set forth in Section 3.2 or Section 3.6 hereof to the contrary, an Initial Member, acting alone and on behalf of the Company and any then existing Property Companies, may enforce and make all decisions under or in   -46- connection with agreements between the Company or any Property Company, on the one hand, and the other Initial Member and/or its Affiliates, on the other hand, provided that for purposes of this Section 4.4(b) Island Hospitality Management shall be considered an Affiliate of Chatham. ARTICLE V. TRANSFERS OF INTERESTS Section 5.1 Restrictions on Transfer. (a) No Transfer shall be made by either Chatham or Cerberus with respect to all or any portion of its Interest without the prior written approval of the non-Transferring Member unless such Transfer is (i) pursuant to Section 3.7 of this Agreement, or (ii) to a Permitted Transferee of such Member. No Member will have the ability to directly or indirectly syndicate its Interest to unaffiliated co-investors. (b) The Company, each Member, the Managing Member, the Officers and any other Person or Persons having business with the Company need only deal with Members who are admitted as Members or as additional or substitute Members of the Company, and they shall not be required to deal with any other Person by reason of a Transfer by a Member. In the absence of a transferee of a transferring Member’s Percentage Interest being admitted as a Member as provided herein, any payment to a Member shall release the Company and the Members of all liability to any other Persons who may be interested in such payment by reason of an assignment by such Member. (c) Each transferee, as a condition to its admission as a Member, shall execute and deliver to the Company such instruments (including a counterpart of this Agreement), in form and substance reasonably satisfactory to the Managing Member, as the Managing Member shall reasonably deem necessary or desirable to confirm the agreement of such transferee to be bound by all the terms and provisions of this Agreement (as it may be amended in connection with the admission of such transferee as a Member). The Members agree to amend this Agreement to the extent necessary to reflect the Transfer and admission of the new Member and to continue the Company without dissolution. Upon execution of such instruments, the transferee shall be admitted to the Company as a Member. Immediately following the admission of the transferee to the Company as a Member, any Person who has thereby transferred all of its ownership interest in the Company shall cease to be a Member of the Company. Except as set forth herein, any transferee who is admitted to the Company as a Member shall succeed to the rights and powers, and be subject to the restrictions and liabilities, of the transferor Member to the extent of the Percentage Interest transferred. (d) In the event that the Members determine to sell all but not less than all of their Percentage Interest in the Company (including pursuant to Section 3.7 hereof), the Tax Matters Member will propose a schedule (the “Allocation Schedule”) to the Initial Members of the Company allocating the expected purchase price in accordance with Section 1060 of the Code. Upon the affirmative vote of each of the Initial Members of the Company   -47- (or, from and after the occurrence of a Termination Event, the Cerberus Initial Members), such proposed allocation will be the Allocation Schedule that will be proposed by the Members in connection with the potential sale and, if no objection is made to such Allocation Schedule by the third party purchaser of the Percentage Interests, will be final and binding in connection with such sale upon the Members. Section 5.2 Non-Permitted Transfers. (a) Any purported Transfer of all or any portion of a Member’s Percentage Interest of the Company or any economic benefit or other interest therein not in compliance with Section 5.1 shall be null and void ab initio, regardless of any notice provided to any of the parties hereto, and shall not create any obligation or liability of any of the parties hereto to the purported transferee, and any Person purportedly acquiring all or any portion of any Percentage Interest or any economic benefit or other interest therein transferred not in compliance with Section 5.1 shall not be entitled to admission to the Company as a substitute Member. In the event of any direct or indirect Transfer of an interest in a Member, other than a Transfer permitted under Article V hereof, the Member that has made such Transfer shall not be necessary for any Major Decision until such Transfer has been rescinded or otherwise nullified, except that the consent of such Member shall still be required to amend this Agreement. (b) In the case of an attempted Transfer of all or any portion of any Percentage Interest of the Company or any economic benefit or other interest therein that is not in compliance with Section 5.1, the parties engaging or attempting to engage in such Transfer shall indemnify and hold harmless the other parties hereto and their respective officers, directors, affiliates, members, partners and employees from all cost, liability and damage that any of such indemnified persons may incur (including, without limitation, incremental tax liability and attorneys’ fees and expenses) as a result of such Transfer or attempted Transfer and the enforcement of this indemnity. (c) No Member, including any assignee or successor in interest of any Member, shall Transfer all or any portion of its Percentage Interest of the Company or any economic benefit or other interest therein if such Transfer would cause the Company to be treated as a “publicly traded partnership” within the meaning of Code Section 7704 and the Regulations promulgated thereunder. ARTICLE VI. ALLOCATIONS Section 6.1 General Rules. (a) Allocations of Profits and Losses. Except as otherwise provided in this Article VI, Profits and Losses for any Fiscal Period shall be allocated among the Members in such manner that, as of the end of such Fiscal Period, the respective Capital Accounts of the Members shall be equal to the respective amounts that would be distributed to them, determined as if the Company were to (i) liquidate the assets of the Company for an amount equal to their Gross Asset Value and (ii) distribute the proceeds of liquidation pursuant to Section 10.3.   -48- Section 6.2 Other Allocation Rules. (a) For purposes of determining the Profits, Losses or other items allocable to any Fiscal Period, Profits, Losses and such other items shall be determined on a daily, monthly or other basis as determined by the Tax Matters Member in its reasonable discretion using any permissible method under Code Section 706 and the Regulations thereunder. (b) The Members are aware of the United States federal income tax consequences of the allocations made by this Article VI and hereby agree to be bound by the provisions of this Article VI in reporting their shares of Company income and loss for income tax purposes. (c) All items of income, gain, loss, deduction, or credit and any other allocations not otherwise provided for shall be allocated among the Members as determined by the Tax Matters Member in its reasonable discretion. (d) If a Member transfers all or a portion of its Percentage Interest during any Fiscal Period, then Profits, Losses, each item thereof and all other items attributable to the transferred interest for such Fiscal Period shall be divided and allocated between the transferor and the transferee by taking into account their varying interests in the Company during the Fiscal Period in accordance with Section 706(d) of the Code, using any conventions permitted by law and selected by the Tax Matters Member in its reasonable discretion. Section 6.3 Tax Allocations: Code Section 704(c). (a) Subject to Section 6.3(b) and (c), for each Fiscal Year, items of income, deduction, gain, loss and credit shall be allocated for tax purposes among the Members to reflect the amounts which have been credited or debited to the Capital Account of each such Member for such Fiscal Year and prior Fiscal Years. (b) In accordance with Code Section 704(c) and the Regulations thereunder, items of income, gain, loss, deduction and credit with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted tax basis of such property at the time of contribution to the Company for federal income tax purposes and its initial Gross Asset Value at the time of contribution using a method permitted by applicable Regulations under Code Section 704(c), as determined by the Tax Matters Member in its reasonable discretion. (c) In the event the Gross Asset Value of any Asset is adjusted in accordance with paragraph (b) of the definition of Gross Asset Value hereof, subsequent allocations of items of income, gain, loss, deductions or credit with respect to such asset shall take into account any variation between the adjusted tax basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Regulations thereunder.   -49- (d) Any elections or other decisions relating to allocations for tax purposes, basis adjustments or other tax matters shall be made by the Tax Matters Member in its reasonable discretion. Allocations pursuant to this Section 6.3 are solely for purposes of federal, state and local taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account, share of Profits or Losses, or other items or distributions pursuant to any (e) Notwithstanding anything in this Agreement to the contrary, the Tax Matters Member shall not make any determinations or elections, or fail to make any elections reasonably requested by the Managing Member, under this Article VI or the definition of “Depreciation” that could reasonably be expected to disproportionately, materially and adversely affect Chatham or the Chatham REIT without Chatham’s prior written consent. ARTICLE VII. DISTRIBUTIONS AND EXPENSES Section 7.1 Distributions of Net Cash Flow. (a) Net Cash Flow shall be reasonably determined by the Managing Member. Distributions of Net Cash Flow shall be made on a quarterly basis in the following order and priority: (i) First, to any Member that has made a Member Loan in the amount of such Member Loan plus a return thereon at 15% per annum, compounded monthly; (ii) Second, pari passu to the Members in accordance with their respective Percentage Interests until each Member and such Member’s Ink I Affiliate(s), Ink III Affiliate(s), Ink IV Affiliate(s), Ink V Affiliate(s), Ink VI Affiliate(s) and Ink VII Affiliate(s) collectively have received aggregate distributions from the Company, Ink I, Ink III, Ink IV, Ink V, Ink VI and Ink VII in an amount sufficient to provide a 15.0% per annum cumulative return, compounded monthly, on such Member’s Capital Contributions, such Member’s Ink I Affiliate’s Ink I Capital Contributions, such Member’s Ink III Affiliate’s Ink III Capital Contributions, such Member’s Ink IV Affiliate’s Ink IV Capital Contributions, such Member’s Ink V Affiliate’s Ink V Capital Contributions, such Member’s Ink VI Affiliate’s Ink VI Capital Contributions and such Member’s Ink VII Affiliate’s Ink VII Capital Contributions, taken as a whole; (iii) Third, pari passu to the Members in accordance with their respective Percentage Interests until all Capital Contributions made by such Member, all Ink I Capital Contributions made by such Member’s Ink I Affiliate(s), all Ink III Capital Contributions made by such Member’s Ink III Affiliate(s), all Ink IV Capital Contributions made by such Member’s Ink IV Affiliate(s), all Ink V Capital Contributions made by such Member’s Ink V Affiliate(s), all Ink VI Capital Contributions made by such Member’s Ink VI Affiliate(s) and all Ink VII Capital Contributions made by such Member’s Ink VII Affiliate(s), taken as a whole, have been fully recovered;   -50- (iv) Fourth, 10% to Chatham and 90% pari passu to the Members in accordance with their respective Percentage Interests until such time as Cerberus, Cerberus’ Ink I Affiliate, Cerberus’ Ink III Affiliate, Cerberus’ Ink IV Affiliate, Cerberus’ Ink V Affiliate, Cerberus’ Ink VI Affiliate and Cerberus’ Ink VII Affiliate have collectively received a 20.0% per annum cumulative return, compounded monthly, on Cerberus’ Capital Contributions, Cerberus’ Ink I Affiliate’s Ink I Capital Contributions, Cerberus’ Ink III Affiliate’s Ink III Capital Contributions, Cerberus’ Ink IV Affiliate’s Ink IV Capital Contributions, Cerberus’ Ink V Affiliate’s Ink V Capital Contributions, Cerberus’ Ink VI Affiliate’s Ink VI Capital Contributions and Cerberus’ Ink VII Affiliate’s Ink VII Capital Contributions, taken as a whole; (v) Fifth, 15.0% to Chatham and 85.0% pari passu to the Members in accordance with their respective Percentage Interests until such time as Cerberus, Cerberus’ Ink I Affiliate, Cerberus’ Ink III Affiliate, Cerberus’ Ink IV Affiliate, Cerberus’ Ink V Affiliate, Cerberus’ Ink VI Affiliate and Cerberus’ Ink VII Affiliate have collectively received a 25.0% per annum cumulative return, compounded monthly, on Cerberus’ Capital Contributions, Cerberus’ Ink I Affiliate’s Ink I Capital Contributions, Cerberus’ Ink III Affiliate’s Ink III Capital Contributions, Cerberus’ Ink IV Affiliate’s Ink IV Capital Contributions, Cerberus’ Ink V Affiliate’s Ink V Capital Contributions, Cerberus’ Ink VI Affiliate’s Ink VI Capital Contributions, and Cerberus’ Ink VII Affiliate’s Ink VII Capital Contributions, taken as a whole; and (vi) Sixth, 20.0% to Chatham and 80.0% pari passu to the Members in accordance with their respective Percentage Interests. (b) Notwithstanding the foregoing, Chatham’s receipt of the Promoted Interests (as defined below) will be subject to Cerberus, Cerberus’ Ink I Affiliate, Cerberus’ Ink III Affiliate, Cerberus’ Ink IV Affiliate, Cerberus’ Ink V Affiliate, Cerberus’ Ink VI Affiliate and Cerberus’ Ink VII Affiliate first receiving a minimum return on Cerberus’ Capital Contributions, Cerberus’ Ink I Cerberus’ Ink VI Affiliate’s Ink VI Capital Contributions and Cerberus’ Ink VII Affiliate’s Ink VII Capital Contributions, taken as a whole, of 150% (the “Minimum Cerberus Multiple”). In the event that the Minimum Cerberus Multiple is not met at any given time, distributions shall be made in accordance with the waterfall above provided that the Promoted Interests, if any, payable at such time will be retained by the Company in an escrow account managed by an escrow agent reasonably acceptable to Chatham and Cerberus and may only be distributed to Chatham and deducted from its Capital Account once the Minimum Cerberus Multiple has been achieved for at least two consecutive fiscal quarters. If Chatham receives distributions of the Promoted Interests, whether pursuant to Section 7.1(a) above or the immediately preceding sentence in this Section 7.1(b) and, at any time subsequent to such receipt, the Minimum Cerberus Multiple is not achieved for any two consecutive quarters, Chatham shall repay to the Company all distributions of Promoted Interests previously received by Chatham. Such repaid distributions shall be retained by the Company in escrow and shall be distributed to Chatham once the Minimum Cerberus Multiple has been achieved for at least two consecutive fiscal quarters.   -51- The “Promoted Interest” shall mean any and all distributions to Chatham pursuant to clause (iv), (v) or (vi) above, in excess of the distributions that Chatham would have otherwise been entitled to receive had such distribution been made in accordance with the Members’ respective Percentage Interests. Section 7.2 Amounts Withheld. All amounts withheld or paid pursuant to the Code or any provisions of state, local or foreign tax law with respect to any payment, distribution, allocation or other consideration paid to the Members, including in connection with a contribution of assets to the Company by a Member, shall be treated as amounts paid or distributed, as the case may be, to the Members with respect to which such amount was withheld or paid pursuant to this Section 7.2 for all purposes under this Agreement. The Company is authorized to withhold or pay, when required under applicable law, from payments, distributions, or other consideration paid to Members, and with respect to allocations to the Members, and to pay over to any federal, state, local or foreign government any amounts required to be so withheld or paid pursuant to the Code or any provisions of any federal, state, local or foreign law, and shall allocate any such amounts to the Members with respect to which such amounts were withheld or paid. Section 7.3 Expenses. Except as otherwise provided in this Agreement, the Company will be responsible for all third party expenses of the Company. Subject to Section 3.1(c), each Member shall otherwise be responsible for all costs and expenses incurred by such Member in the performance of its obligations under this Agreement. ARTICLE VIII. OTHER TAX MATTERS Section 8.1 Tax Matters Member. The Company and each Member hereby designate Cerberus as the “tax matters partner” for purposes of Code Section 6231(a)(7)(the “Tax Matters Member”). The Tax Matters Member (after consultation with the Managing Member) shall: (a) cause to be prepared and timely filed by the Company all United States federal, state and local income tax returns of the Company for each year for which such returns are required to be filed, and (b) determine the appropriate treatment of each item of income, gain, loss, deduction and credit of the Company and the accounting methods and conventions under the tax laws of the United States, the several states and other relevant jurisdictions as to the treatment of any such item or any other method or procedure related to the preparation of such tax returns. Subject to the express provisions of this Agreement, Cerberus may in its reasonable discretion cause the Company to make or refrain from making any and all elections permitted by such tax laws, provided that the Tax Matters Member shall not make, or refrain from making any election reasonably requested by the Managing Member, that could reasonably be expected to disproportionately, materially and adversely affect Chatham or the Chatham REIT without Chatham’s prior written consent. Section 8.2 Furnishing Information to Tax Matters Member. Each Member shall furnish to the Tax Matters Member such information (including information specified in Code Section 6230(e)) as such Tax Matters Member may, at its reasonable discretion, request to permit it to provide the Internal Revenue Service with sufficient information to allow proper   -52- notice to the Members in accordance with Code Section 6223 or any other provisions of the Code or the published regulations thereunder which require the Tax Matters Member to obtain information from the Members. Section 8.3 Tax Claims and Proceedings. In respect of any income tax audit of any tax return of the Company, the filing of any amended return or claim for refund in connection with any item of income, gain, loss, deduction or credit reflected on any income tax return of the Company, or any administrative or judicial proceedings arising out of or in connection with any such audit, amended return, claim for refund or denial of such claim, (a) all expenses reasonably incurred by the Tax Matters Member in connection therewith shall be expenses of the Company, (b) the Tax Matters Member shall promptly deliver to each other Members a copy of all notices, communications, reports and writings received from the IRS relating to or potentially resulting in an adjustment of Company items, shall promptly advise each of the other Members of the substance of any conversations with the IRS in connection therewith and shall keep the other Members advised of all developments with respect to any proposed adjustments which come to its attention; (c) the Tax Matters Member shall (i) provide the other Members with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission, (ii) incorporate all reasonable changes or comments to such correspondence or filing requested by the other Members and (iii) provide the other Members with a final copy of correspondence or filing, (d) the Tax Matter Member will provide each Member with notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings) and each Member shall have the right to participate, at its sole cost and expense, in any such meetings or conferences. Notwithstanding anything in this Agreement to the contrary, the Tax Matters Member shall not enter into any settlement agreement that is binding upon the other Members with respect to the determination of Company items at the Company level without the prior written consent of the other Members. The Tax Matters Member shall use commercially reasonable efforts to provide tax returns to all Members within 60 days after the end of the relevant fiscal year if the Managing Member has provided the requisite information to the Tax Matters Member or the Company’s accountants reasonably in advance of such date. Section 8.4 Books and Records. The books and records of the Company shall reflect all Company transactions and shall be appropriate and adequate for the Company’s business. The books and records of the Company shall include a record of each transfer of participating interests of the Company. The Fiscal Year of the Company for financial reporting and for federal income tax purposes shall be the calendar year. All books and records of the Company shall be maintained at any office of the Company or at the Company’s principal place of business in the United States, and each Member, and any duly authorized representative, shall have access to them at such office of the Company and the right to inspect and copy them at reasonable times. The Company’s books of account shall be kept on an accrual basis or as otherwise provided by the Managing Member and otherwise in accordance with generally accepted accounting principles, consistently applied, except that for income tax purposes such books shall be kept in accordance with applicable tax accounting principles (including the Regulations).   -53- Section 8.5 Survival. The provisions of this Article VIII shall survive the termination of the Company (as well as any termination, purchase or redemption of any Member’s Percentage Interest in the Company for any reason whatsoever), and shall remain binding on the Members and all former Members for a period of time necessary to resolve with the appropriate taxing authorities any and all material matters regarding the taxation of the Company and its Members by reason of their percentage interests. ARTICLE IX. REPRESENTATIONS AND WARRANTIES; COVENANTS Section 9.1 Representations and Warranties of Members. Each of the Members hereby represents and warrants to the Company and to each of the other Members, as of the date hereof that: (a) If it is a corporation, a limited liability company or limited partnership, it is duly incorporated or otherwise duly organized, validly existing and in organization, and if it is a partnership, it is validly constituted and not dissolved, and, in each case, has the power and lawful authority to own its assets and properties and to carry on its business as now conducted. (b) It has the full right, power and authority to enter into, execute and deliver this Agreement and to perform fully its obligations hereunder. This Agreement has been fully executed and delivered by such Member and, assuming the due execution and delivery by the other parties, constitutes the valid and binding obligation of such Member, enforceable in accordance with its terms, except as (i) such enforceability may be limited by bankruptcy, reorganization or moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) the availability of equitable remedies may be limited by equitable principles of general applicability. (c) No approval or consent of any governmental authority or of any other Person is required in connection with the execution and delivery by it of this Agreement and the consummation and performance by such member of the transactions contemplated hereunder, except such as have been obtained and are (d) The execution and delivery of this Agreement by it, the consummation of the transactions contemplated hereunder and the performance by such Member of its obligations under this Agreement, in accordance with the terms and conditions hereof, will not conflict with or result in the breach or violation of any of the terms or conditions of, or constitute (or with notice or lapse of time or both would constitute) a default under, (i) the certificate of incorporation, by-laws, certificate of formation, limited liability company agreement or other constitutive documents of such Member; (ii) any instrument or contract to which such Member is a party or by or to which it or its assets or properties are   -54- bound or subject; or (iii) any statute or any regulation, order, judgment or decree of any governmental authority, except, in each case, for such breaches violations or defaults that would not, individually or in the aggregate, materially impair the ability of such Member to perform its obligations hereunder. (e) It understands that there are substantial risks to an investment in the Company and it has both the sophistication to be able to fully evaluate the risk of an investment in the Company and the capacity to protect its own interests in making such investment. Such Member fully understands and agrees that the investment in the Company is an illiquid investment. (f) It is a QIB or an “accredited investor” within the meaning of the 1933 Act and is able to bear the economic risk of such an investment in the Company for an indefinite period of time, that it has no need for liquidity of this investment and it could bear a complete loss of this investment. The Member is either (i) a “qualified purchaser” within the meaning of the 1940 Act or (ii) if the Member is an entity formed and is being utilized primarily for the purpose of making an investment in the Company, each beneficial owner of such Member’s securities is such a qualified purchaser. (g) It is acquiring its percentage interests for investment solely for such Member’s own account and not for distribution, transfer or sale to others in connection with any distribution or public offering. It understands that, irrespective of whether or not the Percentage Interests might be deemed “securities” under applicable laws, the Company is not obligated to register any percentage interests for resale under the 1933 Act or any applicable state securities laws. (h) It specifically understands and agrees that no other Member, has made nor will make any representation or warranty with respect to the worthiness, terms, value or any other aspect of the Company, any Percentage Interest or the Business or Properties and it explicitly disclaims any warranty, express or implied, with respect to such matters. In addition, such Member specifically acknowledges, represents and warrants that (i) it is not relying on any other Member for its own due diligence concerning, or evaluation of, the Company or any related transaction and (ii) that it is not relying on any other Member with respect to tax and other economic considerations involved in an investment in the Company. (i) No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the Company based upon arrangements made by or on behalf of such Member. (j) There are no actions, suits or proceedings pending, or to the knowledge of such Member threatened against such Member or its Affiliates which, if adversely determined, could materially adversely affect the ability of such Member or its Affiliates to perform its obligations under this Agreement or materially adversely affect the Percentage Interest of any other Member.   -55- Section 9.2 ERISA Representation. Each of the Members represents, warrants and covenants to each other Member and to the Company that no portion of the assets being used by it to purchase and hold its percentage interests constitute assets of a plan within the meaning of Section 3(32) of ERISA. Section 9.3 AML/OFAC Compliance (a) Each Member hereby represents and warrants to each other Members and to the Company, as of the date hereof, as follows: (i) To the best of its knowledge, it is in compliance with all applicable anti-money laundering and anti-terrorist laws, regulations, rules, executive orders and government guidance, AML and the OFAC Sanctions Programs, including the reporting, record-keeping and compliance requirements of the Bank Secrecy Act, as amended by the USA PATRIOT Act (collectively, the “BSA/Patriot Act”), and all related applicable Securities and Exchange Commission, self-regulatory organization or other agency rules and regulations, and has internal policies, procedures, internal controls and systems in place that are reasonably designed to ensure such compliance (collectively “AML/OFAC Laws”); (ii) Neither (1) such Member nor any nor any Affiliate of such Member, nor (2) to the best of such Member’s knowledge, after conducting reasonable due diligence, any Person having a direct or indirect beneficial interest in such Member, nor (3) any person for whom such Member is acting as agent or nominee in connection with this investment is prohibited pursuant to the OFAC Sanctions Programs; (iii) Unless disclosed in writing to the other Members on or before the date hereof, (1) it is not a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure, (2) it is not controlled by a Senior Foreign Political Figure, or an Immediate Family Member or Close Associate of a Senior Foreign Political Figure, and (3) to the best of such Member’s knowledge, after conducting reasonable due diligence, none of the direct or indirect owners of such Member is a Senior Foreign Political Figure, or an Immediate Family Member or a Close Associate of a Senior Foreign Political Figure; (iv) It is not a foreign financial institution or a Person located in a foreign jurisdiction that has been designated by the U.S. Department of the Treasury as being subject to any special measures imposed on such financial institutions and jurisdictions pursuant to Section 311 of the BSA/Patriot Act; (v) It is not a “foreign shell bank” and it is not being used to provide services to a “foreign shell bank”, as that term is defined for purposes of Sections 313 and 319 of the BSA/Patriot Act; (b) Each Member hereby covenants to the Company and the other Members as follows: (i) Such Member will not engage in any activities that contravene federal state or international regulations, including all applicable AML/OFAC Laws;   -56- (ii) Such Member will ensure that the cash or other assets contributed to the Company by such Member will not be directly or indirectly derived from activities that contravene federal, state or international regulations, including applicable AML/OFAC Laws; (iii) Such Member will not utilize any funds received by the Company for any purpose that contravenes federal, state or international regulations, including applicable AML/OFAC Laws; (iv) All funds contributed to or received from the Company by such Member will be wired to or from a bank located in an Approved FATF Country (“Wiring Bank”) where such Member is a customer of the Wiring Bank; (v) All transactions, negotiations, discussions and dealings by such Member in connection with the Company will be in full compliance with all applicable AML/OFAC Laws; (vi) Upon receiving a request from the Company or another Member, such Member shall provide such information as may be reasonably required by the Company or such other Member to confirm that the representations, warranties and covenants contained in this Section 9.3(c) continue to be true and to comply with all applicable anti-money laundering and anti-terrorist laws, regulations and executive orders; (vii) Such Member consents to the disclosure to United States regulators and law enforcement authorities by the Company or any other Member and its Affiliates of such information about such Member as the Company or such other Member or any of its Affiliates reasonably deems necessary or appropriate to comply with executive orders; (viii) As a condition to any Transfer of such Member’s direct or indirect interest in the Company, the Company and the other Members have the right to require full compliance with the representations, warranties and covenants contained in this Section 9.3; (ix) Such Member will notify the Company and the other Members promptly if there is any change with respect to any of the representations or warranties (or any breach of a covenant) contained in this Section 9.3; and (x) Such Member is a “United States person” for United States federal income tax purposes. (c) Each Member hereby acknowledges and agrees that the Company and the other Members have relied on the truthfulness of (and compliance by such Member with) each and every provision of this Section 9.3, and that any breach of such representations, warranties or covenants, including, without limitation, one that causes a breach or violation of, or a failed condition under, any documents by which the Company is bound (such as loan documents), is likely to result in substantial loss for the Company and/or the other Members.   -57- (d) Each Member hereby acknowledges and agrees that if, following its investment in the Company, the Company or any other Member reasonably believes that such Member has breached any of its representations, warranties or covenants set forth in this Section 9.3, or that any action is otherwise required by law or regulation, the Company and the other Members have the right or may be obligated to freeze or block such Member’s investment in the Company, to prohibit additional investments by such Member in the Company, to segregate the assets constituting such Member’s investment in accordance with applicable AML/OFAC Laws and regulations, to decline any redemption or transfer requests made by or on behalf of such Member, to redeem such Member’s investment, and/or to report any such action to the applicable governmental authorities. Each Member further acknowledges and agrees that it will have no claim against the Company and/or any other Member or any of their respective Affiliates for any form of damages as a result of any of the foregoing actions. Section 9.4 Survival. The representations and warranties of the Members contained in this Agreement shall survive the Closing Date. ARTICLE X. DISSOLUTION AND TERMINATION OF THE COMPANY Section 10.1 Dissolution. The Company shall be dissolved and its business wound up upon the earliest to occur of any one of the following events, unless the Members vote to continue the life of the Company upon the occurrence of such an event: (a) The written determination of Cerberus and Chatham to terminate the Company; (b) Twenty-four (24) months after the sale, condemnation or other disposition of all Properties and the receipt of all consideration therefor; or (c) The entry of a decree of judicial dissolution of the Company pursuant to the provisions of the Act. Without limiting the generality of the foregoing, the permitted Transfer of a Member’s Interest will not result in the dissolution of the Company. Except as otherwise specifically provided in this Agreement, each Member agrees that, without the consent of the other Members, no Member may withdraw from, terminate or cause a voluntary dissolution of the Company, and, in the event that a Member withdraws from the Company or causes a dissolution of the Company in contravention of this Agreement, such withdrawal or dissolution shall not reduce or otherwise affect such Member’s continuing liability for the obligations and liabilities of the Company. Section 10.2 Continuation of Interest of Member’s Representative. Notwithstanding anything contained herein, upon the expulsion, receivership, dissolution or Bankruptcy of a Member, the personal representative, trustee-in-bankruptcy, debtor-in-possession, receiver, other representative, successor, heir or legatee (each a “Representative”) of such Member shall, subject to the provisions of Section 5.1, immediately succeed to the Percentage Interest of such Member in the Company. Such Representative shall appoint an individual (which may be such Representative) who will represent the Representative’s voting interest, if any (the “Voting Representative”).   -58- Section 10.3 Dissolution, Winding Up and Liquidation. (a) Upon a dissolution of the Company, the Company shall continue solely for purposes of winding up its affairs in an orderly manner, liquidating its assets, and satisfying claims of its creditors. The liquidator of the Company shall take full account of the Company’s liabilities and property and shall cause the property or the proceeds from the sale thereof, to the extent sufficient therefor, to be applied and distributed, to the maximum extent permitted by law, in the following order: (i) first, to creditors (including Members who are creditors) in satisfaction of all of the Company’s debts and other liabilities, including the expenses of the winding-up, liquidation and dissolution of the Company (whether by payment or the making of reasonable reserves to provide for payment thereof); and (ii) second, to the Members in accordance with Section 7.1. (b) Distributions pursuant to this Section 10.3 shall be made no later than the end of the Fiscal Year during which the Company is liquidated (or, if later, 90 days after the date on which the Company is liquidated). Section 10.4 Member Bankruptcy. (a) Notwithstanding any other provision of this Agreement, the Bankruptcy of a Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution. (b) Notwithstanding any other provision of this Agreement, each of the Members waives any right it might have to agree in writing to dissolve the Company upon the Bankruptcy of the Members, or the occurrence of an event that causes the Member to cease to be a member of the Company. ARTICLE XI. INDEMNIFICATION AND CONTRIBUTION Section 11.1 Indemnity by the Company. Subject to the provisions of Section 11.4, the Company shall indemnify any Person who was or is a party or is suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that such Person is or was a Member, Officer, director, Managing Member, Hotel Manager, controlling person, employee, legal representative or agent of the Company, or is or was serving at the request of the Company as manager, director, Managing Member, Hotel Manager, officer, partner, member, shareholder, controlling person, employee, legal representative or agent of another limited liability company, partnership, corporation, joint venture, trust or other enterprise (an “Indemnified Person”), from   -59- and against any and all claims, actions, suits, proceedings, liabilities, obligations, losses, damages, judgments, fines, penalties, amounts paid in settlement, interest, costs and expenses (including reasonable attorney’s and accountant’s fees, court costs and other out-of-pocket expenses actually and reasonably incurred in investigating, preparing or defending the foregoing) (including any such brought by or in the right of the Company) suffered or incurred by such Indemnified Person while serving in such capacity or that otherwise in any way relate to or arise out of any action or inaction by such Indemnified Person or the Company (collectively, “Indemnifiable Losses”), if such Indemnified Person acted in good faith and in a manner that such Indemnified Person reasonably believed to be in or not opposed to the best interests of the Company and not in violation of this Agreement or outside the scope of such Person’s authority, and, with respect to a criminal action or proceeding, had no reasonable cause to believe such Person’s conduct was unlawful; provided, that the Company shall have no obligation to indemnify or defend hereunder to the extent such action, suit or proceeding arises from fraud, bad faith, willful misconduct or gross negligence on the part of such Indemnified Person. Section 11.2 Exculpation. No Indemnified Person shall be liable to any Member of the Company for any act or failure to act on behalf of the Company, unless such act or failure to act resulted from fraud, bad faith, willful misconduct or gross negligence of the Indemnified Person. Each Indemnified Person may consult with legal counsel and accountants in respect of the Company’s affairs and shall be fully protected and justified in any action or inaction which is taken in accordance with the advice or opinion of such counsel or accountants. Section 11.3 Expenses. Any indemnification under Section 11.1, as well as the advance payment of expenses permitted under Section 11.4 shall be made by the Company to the fullest extent permitted under the Act. Section 11.4 Advance Payment of Expenses. The expenses of any Member incurred in defending a civil or criminal action, suit or proceeding may be paid by the Company as they are incurred and in advance of the final disposition of the action, suit or proceeding, upon receipt of an undertaking by or on behalf of such Member (in form and substance, from an indemnitor, reasonably satisfactory to all of the Initial Members), to repay the amount if it is ultimately determined by a court of competent jurisdiction that such Member is not entitled to be indemnified by the Company. The provisions of this Section 11.4 do not affect and shall not be deemed exclusive of any other rights, including, without, limitation, any rights to indemnification or advancement of expenses to which any such Indemnified Person other than the Members may be entitled under any contract, pursuant to approval of the Members, or otherwise by law. Section 11.5 Beneficiaries. The indemnification and advancement of expenses authorized in or ordered by a court pursuant to this Article XI continues for a Person who has ceased to be a Member, officer, employee or agent and inures to the benefit of the heirs, executors and administrators of such Person. Section 11.6 Indemnification Procedure for Third Party and Other Claims. The Company shall have the right, but not the obligation, exercisable by written notice to the Indemnified Person seeking such indemnification hereunder promptly but in any event no later than 30 days after receipt of written notice from the Indemnified Person of the commencement   -60- of or assertion of any claim, action, suit or proceeding by a third party in respect of which indemnity may be sought hereunder (a “Third Party Claim”), to assume the defense and control the settlement of such Third Party Claim that (a) involves (and continues to involve) solely money damages or (b) involves (and continues to involve) claims for both money damages and equitable relief against the Indemnified Party that cannot be severed, where the claims for money damages are the primary claims asserted by the third party and the claims for equitable relief are incidental to the claims for money damages. The Indemnified Person shall have the right to assume the defense and control the settlement of any Third Party Claim (i) not described in clauses (a) or (b) of the preceding sentence or (ii) described in clauses (a) or (b) of the preceding sentence whose defense and control of settlement has not been promptly assumed by the Company. The Company or the Indemnified Person, as the case may be, shall have the right to participate in (but not control), at its own expense, the defense of any Third Party Claim that the other is defending, as provided in this Agreement. The Company, if it has assumed the defense of any Third Party Claim as provided in this Agreement, shall not consent to a settlement of, or the entry of any judgment arising from, any such Third Party Claim without the Indemnified Person’s prior written consent (which consent shall not be unreasonably withheld). The Company shall not, without the Indemnified Person’s prior written consent, enter into any compromise or settlement which (A) commits the Indemnified Person to take, or to forbear to take, any action or (B) does not provide for a complete release by such Third Party of the Indemnified Person. The Indemnified Person shall have the sole and exclusive right to settle any Third Party Claim, on such terms and conditions as it deems reasonably appropriate, to the extent such Third Party Claim involves equitable or other non-monetary relief against the Indemnified Person, and shall have the right to settle any Third Party Claim involving money damages for which the Company has not assumed the defense pursuant to this Section 11.6 with the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. Section 11.7 Other Claims. In the event an Indemnified Person shall claim a right to payment pursuant to this Agreement for other than a Third Party Claim, such Indemnified Person shall send written notice of such claim to the Indemnifying Party. Such notice shall specify the basis for such claim. As promptly as possible after the Indemnified Person has given such notice, the Indemnified Person and the Company shall attempt to resolve such claim by mutual agreement before resorting to other legal means to resolve such claim. Section 11.8 Limitation on Damages. Notwithstanding anything contained in this Agreement to the contrary, no party shall be liable to the other party for any indirect, special, punitive, exemplary or consequential loss or damage (including any loss of revenue or profit) arising out of this Agreement including, without limitation, in respect of any breach by any Member of this Agreement; provided, that the foregoing shall not be construed to preclude recovery by the Indemnified Person in respect of Indemnifiable Losses directly incurred from Third Party Claims. Any Indemnified Person shall take commercially reasonable actions to mitigate his, her, its or their damages. The obligation of the Company to indemnify any Indemnified Person with respect to any Indemnifiable Losses hereunder resulting from any action, suit or proceeding shall not exceed the value of the Business and the Properties.   -61- ARTICLE XII. MISCELLANEOUS PROVISIONS Section 12.1 Entire Agreement. This Agreement, the Ink I LLC Agreement, the Ink LLC Agreement, the Ink VII LLC Agreement, and the Certificate of Formation constitute the complete and exclusive statement of the agreement among the Members with respect to the subject matter contained herein and therein. This Agreement, the Ink I LLC Agreement, the Ink III LLC Agreement, the Ink IV LLC Agreement, the Ink V LLC Agreement, the Ink VI LLC Agreement, the Ink VII LLC Agreement, and the Certificate of Formation replace and supersede all prior agreements by and among the Members with respect to the subject matter contained herein and therein. Section 12.2 Amendments. This Agreement may be amended only by the unanimous written consent of the Initial Members. Section 12.3 Applicable Law; Venue. (a) The Certificate of Formation and this Agreement shall be governed exclusively by their respective terms and the laws of the State of Delaware, without regard to the conflicts of laws principles thereof. (b) Any legal action or proceeding with respect to this Agreement and any action for enforcement of any judgment in respect thereof may be brought in the courts of the State of New York or of the United States of America for the Southern District of New York, and, by execution and delivery of this Agreement, each Member hereby accepts for itself and in respect of its property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and the appellate courts thereof. Each Member irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding prepaid, to such party at the address for notices set forth herein. Each Member hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought in the courts referred to above and hereby further irrevocably waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Section 12.4 Enforcement. In the event of an action, suit or proceeding initiated by one Member against another Member or the Company involving the enforcement of its rights hereunder, the prevailing party shall be entitled to indemnification from the other party of reasonable attorneys’ fees and expenses incurred in enforcing its rights in such action, suit or proceeding in accordance with this Section. Section 12.5 Headings. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provisions contained herein.   -62- Section 12.6 Severability. If any provision of this Agreement or the application thereof to any Person or circumstance shall be deemed invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by law. Section 12.7 Counterparts. This Agreement may be executed in several counterparts with the same effect as if the parties executing the several counterparts had all executed one counterpart. Section 12.8 Filings. Following the execution and delivery of this Agreement, representatives of the Company, shall promptly prepare any documents required to be filed and recorded under the Act, and such representatives shall promptly cause each such document to be filed and recorded in accordance with the Act and, to the extent required by local law, to be filed and recorded or notice thereof to be published in the appropriate place in each jurisdiction in which the Company may hereafter establish a place of business. Such representatives, under shall also promptly cause to be filed, recorded and published such statements of fictitious business name and any other notices, certificates, statements or other instruments required by any provision of any applicable law of the United States or any state or other jurisdiction which governs the conduct of its business from time to time. Section 12.9 Additional Documents. Each Member agrees to perform all further acts and to execute, acknowledge and deliver any documents that may be reasonably necessary to carry out the provisions of this Agreement. Section 12.10 Notices. All notices, requests and other communications to any party hereunder shall be in writing (including facsimile) and shall be effective and deemed delivered or given, as the case may be, (a) if given by facsimile, when transmitted and the appropriate confirmation is received from the machine transmitting such facsimile, and followed by hard copy via overnight mail or reputable overnight courier for receipt the next Business Day, (b) if given by reputable overnight courier, on the next Business Day, (c) by hand delivery, when delivered or (d) if mailed, on the second Business following the day on which sent by first class mail: If to Cerberus, addressed as follows: c/o Cerberus Real Estate Capital Management, LLC 299 Park Avenue, 22nd Floor Attention: Tom Wagner Facsimile number: (646) 885-3391 Schulte Roth & Zabel LLP 919 Third Avenue Attention: Stuart D. Freedman, Esq. Facsimile number: (212) 593-5955   -63- If to Chatham, addressed as follows: c/o Chatham Realty Trust 50 Cocoanut Row, Suite 200 Palm Beach, FL 33480 Attention: Jeffrey Fisher Facsimile number: (561) 835-4125 51 West 52nd Street Attention: Scott K. Charles, Esq.                  Robin Panovka, Esq. Facsimile number: (212) 403-2000 If to any other Member, at the addresses or facsimile numbers set forth on the signature page to this Agreement or such other addresses or facsimile numbers as such Member may hereafter specify to the Managing Member, who shall so notify the other Members. Section 12.11 Waiver of Right to Partition and Bill of Accounting. To the fullest extent permitted by applicable law, each Member covenants that it will not, and hereby waives any right to, file a bill for partnership accounting. Each Member irrevocably waives any right that it may have to maintain any action for dissolution of the Company (unless the Company is dissolved pursuant to Section 10.1). Section 12.12 Confidentiality; Press Releases. Each Member shall keep confidential all information of a confidential nature obtained pursuant to this Agreement, except that a Member shall be entitled to disclose such confidential information to (a) its advisors, agents, employees, trustees, lenders, franchisors, consultants, lawyers, accountants and other service providers as reasonably necessary in the furtherance of such Member’s bona fide interests, as otherwise required by law or judicial process and to comply with reporting requirements, and to potential transferees of its percentage interests provided that such potential transferees enter into customary confidentiality agreements, with the Company expressly stated therein to be a third party beneficiary thereof, (b) its investors provided that such investors are subject to confidentiality obligations, and (c) the extent required to comply with applicable reporting requirements under the Federal securities laws. Notwithstanding anything in this Agreement to the contrary, to comply with Regulations 1.6011-4(b)(3)(i), each Member (and any employee, representative or other agent of such Member) may disclose to any and all persons, without limitation of any kind, the U.S. federal income tax treatment and tax structure of the Company or any transactions undertaken by the Company, it being understood and agreed, for this purpose, (a) the name of, or any other identifying information regarding (i) the Company or any existing or future Member (or any affiliate thereof) in the Company, or (ii) any investment or transaction entered into by the Company; and (b) any performance information relating to the Company, does not constitute such tax treatment or tax structure information. No Member shall publicly make any public announcements regarding this Agreement or the Company or its   -64- business; provided, however, each Initial Member may consult with and obtain the approval of the other Initial Members before issuing a press release or other public announcement with respect to this Agreement and may issue a press release or make a public announcement following such consultation and approval. Section 12.13 Uniform Commercial Code. Each limited liability company interest in the Company shall constitute a “security” within the meaning of, and governed by, (i) Article 8 of the Uniform Commercial Code (including Section 8 102(a)(15) thereof) as in effect from time to time in the State of Delaware, and (ii) the Uniform Commercial Code of any other applicable jurisdiction that now or hereafter substantially includes the 1994 revisions to Article 8 thereof as adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and approved by the American Bar Association on February 14, 1995. Section 12.14 Binding Agreement. Notwithstanding any other provision of this Agreement, the Members agree that this Agreement constitutes a legal, valid and binding agreement of the Members, and is enforceable against the Members by the Company in accordance with its terms. Section 12.15 Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition. Section 12.16 DISCLOSURES. THE INTERESTS OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), OR THE SECURITIES LAWS OF ANY STATE AND ARE BEING OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT AND SUCH LAWS. THE INTERESTS ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE 1933 ACT AND SUCH LAWS PURSUANT TO EXEMPTION FROM REGISTRATION THEREUNDER. THERE WILL NOT BE ANY PUBLIC MARKET FOR THE INTERESTS. IN ADDITION, THE TERMS OF THIS AGREEMENT RESTRICT THE TRANSFERABILITY OF INTERESTS.   -65- IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective   MEMBERS: CRE-INK MEMBER II INC. By:       Name:   Title: CHATHAM TRS HOLDING INC. By:       Name:   Title: SCHEDULE A MEMBERS   MEMBER’S NAME    INITIAL CAPITAL CONTRIBUTION AMOUNT      PERCENTAGE INTEREST   CRE-Ink Member II, Inc.    $ [    ]         89.7 %  Chatham TRS Holding Inc.    $ [    ]         10.3 %  TOTAL    $ [    ]         100.0 %  EXHIBIT A Hotel Management Agreement [On file with the Company] EXHIBIT B The Amended Bid EXHIBIT C Contribution Agreement [See attached] EXHIBIT D Operating Budget [See attached] ANNEX A Properties Marriott Properties   Fort Wayne, IN Residence Inn by Marriott Hilton Properties   Albany, NY Hampton Inn by Hilton Germantown, MD Hampton Inn by Hilton Valencia, CA Embassy Suites by Hilton Westchester, IL Hampton Inn by Hilton Woburn, MA Hampton Inn by Hilton Unaffiliated Properties   107 Merrimac Street, Boston, MA 02114 1600 East Grand River Avenue, East Lansing, MI 48823 2701 East Beltline Avenue SE, Grand Rapids, MI 49546 3553 Founders Road, Indianapolis, IN 46268 222 East 22nd Street, Lombard, IL 60148 1300 E. Higgins Road, Schaumburg, IL 60173 2600 Livernois Road, Troy, MI 48083

RBC Capital Markets® Filed Pursuant to Rule433 Registration Statement No. 333-171806 The information in this preliminary terms supplement is not complete and may be changed. Preliminary Terms Supplement Subject to Completion: Dated May 3, 2011 Pricing Supplement Dated May, 2011 to the Product

Exhibit 10.2 EXECUTIVE EMPLOYMENT AGREEMENT THIS EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of April 30, 2007 (the “Effective Date”), by and between Ascent Solar Technologies, Inc., a Delaware corporation (the “Company”), and Ashutosh Misra (the RECITALS A.            The Company desires to employ and retain the unique experience, abilities, and services of the Executive as Senior Vice President of Operations and Corporate Affairs. B.            The Executive agrees to perform the services of Senior Vice President of Operations and Corporate Affairs for the Company in accordance with the terms and conditions of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the respective covenants and agreements of the parties contained in this Agreement, the Company and Executive agree as follows: 1.             Term.  The term of this Agreement is for three (3) years, commencing on April 30, 2007 (the “Start Date”), unless amended by agreement of the parties or terminated as set forth in Section 5. 2.             Duties.  The Executive will devote his full business time, energies and best efforts to the promotion of the business and affairs of the Company, with responsibility to perform such duties as are specified from time to time by the Board of Directors of the Company (the “Board”) and/or the chief executive officer of the Company (the “CEO”).  The Executive shall report to the CEO. 3.             Compensation. a)             Base Compensation.  In consideration of all services to be rendered by the Executive to the Company as an employee under this Agreement, the Company will pay to the Executive the base salary of $160,000 per year from the Start Date through the termination of this Agreement and any extensions of it (“Base Salary”), payable in accordance with the Company’s standard payroll practices. b)             Bonus Compensation.  As further compensation, the Company may pay to the Executive an annual bonus of up to thirty percent (30%) of Base Salary, at such times and in such amounts as the Board and its Compensation Committee may determine in their discretion based on the Executive’s individual performance and the overall performance of the Company; c)             Equity Compensation.  As further compensation, upon approval by the Compensation Committee of the Board in its sole discretion, on or after June 15, 2007, the 1   Company may grant the Executive options to purchase shares of the Company’s common stock, vesting in co-equal amounts (to the extent possible) over three (3) years from the date of grant, at an exercise price equal to the closing price of the Company’s common stock on the Nasdaq Capital Market on the date of grant.  If granted, the options shall be governed by and issued under the Company’s 2005 Stock Option Plan, as amended. d)             Vacation.  The Executive will receive four (4) weeks of paid vacation for each contract year of this Agreement, commencing on the Start Date.  Vacation will be prorated in the event of termination pursuant to Section 5.  The Executive will not be entitled to carry over accrued but unused vacation from one contract year to the next. e)             Relocation Expenses.  None. f)             Benefit Plans.  To the extent permitted by law and except as otherwise may be determined by the Board, the Executive will be eligible to participate in the Company’s standard benefit plans according to plan provisions. 4.             Confidential Information. a)             Company Information.  Executive agrees at all times during the term of his employment and thereafter, to hold in strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the Board of Directors of the Company, any Confidential Information (as defined below) of the Company.  For purposes of this Agreement “Confidential Information” is defined as any Company proprietary information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed to Executive by the Company either directly or indirectly in writing, orally or by drawings or observation of parts or equipment. Confidential Information does not include any of the foregoing items which has become publicly known and made generally available through no wrongful act of Executive or of others who were under confidentiality obligations as to the item or items involved. b)             Former Employer Information.  Executive agrees that he will not, during his employment with the Company, improperly use or disclose any proprietary information or trade secrets of any former or concurrent employer or other person or entity and that he will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any such employer, person or entity unless consented to in writing by such employer, person or entity. c)             Third Party Information.  Executive recognizes that the Company has received and in the future will receive from third parties their certain limited purposes. Executive agrees to hold all such confidential or proprietary information in the strictest confidence and not to disclose it to any 2   person, firm or corporation or to use it except as necessary in carrying out his work for the Company consistent with the Company’s agreement with such third party. a)             Termination for Cause.  Notwithstanding any provision contained in this Agreement to the contrary, the Company may immediately terminate this Agreement for Cause (as defined below) without giving notice or compensation to the Executive.  For purposes of this Agreement “Cause” includes but is not limited to the following:  (i) the conviction of the Executive or a pleading of guilty or nolo contendere to any felony or misdemeanor, or any crime involving moral turpitude, (ii) a material breach by Executive of his obligations under this Agreement, which will include a failure to perform such duties as are reasonably assigned to the Executive by the Board, (iii) any act by Executive of disloyalty to the Company, or (iv) any violation of Executive’s fiduciary duties to the Company. b)             Termination Without Cause.  Either the Company or the Executive may terminate this Agreement without Cause on giving not less than 30 days’ prior written notice to the other party. c)             Disability.  Unless prohibited by applicable law, this Agreement may be terminated if the Executive suffers a Permanent Disability (as defined below).  For purposes of this Agreement, “Permanent Disability” is defined as the Executive’s inability, due to illness, accident, or other cause, to perform the majority of his usual duties for a period of three (3) months or more despite reasonable accommodation by the Company. d)             Death.  If the Executive dies, this Agreement will automatically terminate. 6.             Compensation Upon Termination. a)             Termination for Cause.  If the Executive is terminated for Cause pursuant to Section 5(a), the Company will pay the Executive only his Base Salary accrued through the date of termination. b)             Termination Without Cause.  If the Executive is terminated without Cause pursuant to Section 5(b), the Company will pay the Executive his Base Salary for a period of twelve (12) months after the date of termination. c)             Disability.  During any period that the Executive fails to perform his duties and responsibilities hereunder as a result of incapacity due to physical or mental illness, the Executive will continue to receive his Base Salary until the Executive’s employment is terminated pursuant to Section 5(c) and thereafter the Executive will receive any disability insurance benefits to which the Executive is entitled. d)             Death.  If this Agreement terminates due to the death of the Executive, then any interests that the Executive may have under the provisions of this Agreement will be 3   payable to the Executive’s estate inclusive of Base Salary provided for in this Agreement as if the Executive terminated his employment without Cause. 7.             Board Approval.  No part of this Agreement will be effective or binding upon the parties unless and until approved or ratified by the Compensation Committee of the Board. 8.             Successors.  The Company will require any successor (whether substantially all of the business and/or assets of the Company to expressly extent that the Company would be required to perform it if no such succession had taken place. 9.             Arbitration.  Any dispute or controversy arising under or in connection with this Agreement will be settled exclusively by arbitration in Denver, Colorado, in accordance with the rules of the American Arbitration Association then in effect by an arbitrator selected by both parties within 10 days after either party has notified the other in writing that it desires a dispute between them to be settled by arbitration. In the event the parties cannot agree on such arbitrator within such 10-day period, each party will select an arbitrator and inform the other party in writing of such arbitrator’s name and address within 5 days after the end of such 10-day period and the two arbitrators so selected will select a third arbitrator within 15 days thereafter; provided, however, that in the event of a failure by either party to select an arbitrator and notify the other party of such selection within the time period provided above, the arbitrator selected by the other party will be the sole arbitrator of the dispute. Each party will pay its own expenses associated with such arbitration, including the expense of any arbitrator selected by such party and the Company will pay the expenses of the jointly selected arbitrator. The decision of the arbitrator or a majority of the panel of arbitrators will be binding upon the parties and judgment in accordance with that decision may be entered in any court having jurisdiction thereover. Punitive damages will not be awarded. 10.          Absence of Conflict.  The Executive represents and warrants that his employment by the Company as described herein will not conflict with and will not be constrained by any prior employment or consulting agreement or relationship. 11.          Assignment.  This Agreement and all rights under this Agreement will be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective personal or legal representatives, executors, administrators, heirs, distributees, devisees, legatees, successors and assigns. This Agreement is personal in nature, and neither of the parties to this Agreement will, without the written consent of the other, assign or transfer this Agreement or any right or obligation under this Agreement to any other person or entity; except that the Company may assign this Agreement to any of its affiliates or wholly-owned subsidiaries, provided, that such assignment will not relieve the Company of its obligations hereunder. 12.          Integration.  This Agreement represents the entire agreement and understanding between the parties as to the subject matter hereof and supersede all prior or contemporaneous agreements whether written or oral. No waiver, alteration, or modification of any of the 4   provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto. 13.          Waiver.  Failure or delay on the part of either party hereto to enforce any right, power, or privilege hereunder will not be deemed to constitute a waiver thereof. Additionally, a waiver by either party or a breach of any promise hereof by the other party will not operate as or be construed to constitute a waiver of any subsequent waiver by such other party. 14.          Severability.  Whenever possible, each provision of this Agreement law, but if any provision of this Agreement is held to be invalid, illegal or jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be 15.          Headings.  The headings of the paragraphs contained in this Agreement are for reference purposes only and will not in any way affect the meaning or interpretation of any provision of this Agreement. 16.          Applicable Law.  This Agreement will be governed by and construed in accordance with the internal substantive laws, and not the choice of law rules, of the State of Colorado. 17.          Counterparts.  This Agreement may be executed in one or more counterparts, none of which need contain the signature of more than one party hereto, and each of which will be deemed to be an original, and all of which together will constitute a single agreement. 18.          Termination of Prior Agreements.  Upon the Effective Date of this Agreement, all prior and still existing employment or consulting agreements between the Executive and the Company shall terminate. 5   IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as of the Effective Date. COMPANY: ASCENT SOLAR TECHNOLOGIES, INC.       By:     Name:     Title:         EXECUTIVE:           Ashutosh Misra     6

Exhibit 10.1 SCHNITZER STEEL INDUSTRIES, INC. LONG-TERM INCENTIVE AWARD AGREEMENT (FY 2015-2016 Performance Period) On October 29, 2014, the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of Schnitzer Steel Industries, Inc. (the “Company”) authorized and granted a performance-based award to _________________ (“Recipient”) pursuant to Section 11 of the Company’s 1993 Stock Incentive Plan (the “Plan”). Compensation paid pursuant to the award is intended to qualify as performance-based compensation under Section 162(m) of the Internal Revenue Code of 1986 (the “Code”). By accepting this award, Recipient agrees to all of the 1.    Award. Subject to the terms and conditions of this Agreement, the Company shall issue to the Recipient the number of shares of Class A Common Stock of the Company (“Performance Shares”) determined under this Agreement based on (a) the performance of the Company during the two-year period from September 1, 2014 to August 31, 2016 (the “Performance Period”) as described in Section 2, (b) Recipient’s continued employment during the Performance Period as described in Section 3, and (c) Recipient’s not engaging in actions prohibited by Section 4. Recipient’s “Target Share Amount” for purposes of this Agreement is _______ shares. 2.    Performance Conditions. 2.1    Payout Factor. Subject to adjustment under Sections 3, 4, 5, 6 and 7, the number of Performance Shares to be issued to Recipient shall be determined by multiplying the Payout Factor by the Target Share Amount. The “Payout Factor” shall be equal to the sum of (a) 50% of the EBITDA Payout Factor as determined under Section 2.2 below, plus (b) 50% of the ROE Payout Factor as determined under Section 2.3 below. 2.2    EBITDA Payout Factor. 2.2.1    The “EBITDA Payout Factor” shall be equal to the average of the Annual EBITDA Payout Factors determined for each of the two fiscal years of the Performance Period. The “Annual EBITDA Payout Factor” for each fiscal year shall be determined under the table below based on the Adjusted EBITDA for fiscal 2015 and the EBITDA Improvement for fiscal 2016; provided, however, that if the Adjusted Operating Income for any fiscal year is less than $0, the “Annual EBITDA Payout Factor” for that fiscal year shall be 0%. Fiscal 2015 Adjusted   Fiscal 2016   Annual EBITDA EBITDA (in millions)   EBITDA Improvement   Payout Factor           Less than _____   Less than _____   0% _____   _____   50% _____   _____   100% _____   _____   125% _____ or more   _____ or more   200% If a Material Discontinuance occurs during fiscal 2015, the target levels of Fiscal 2015 Adjusted EBITDA at each performance level in the above table shall be reduced by the corresponding amount of EBITDA at each performance level for the business unit that is the subject of the Material Discontinuance as reflected in the Company’s Fiscal 2015 Operating Targets document dated October 29, 2014. If the Adjusted EBITDA or EBITDA Improvement for any fiscal year is between any two data points set forth in the applicable column of the above table for that fiscal year, the Annual EBITDA Payout Factor shall be determined by interpolation between the corresponding data points in the last column of the table as follows: the difference between the Adjusted EBITDA or EBITDA Improvement and the lower data point shall be divided by the difference between the higher data point and the lower data point, the resulting fraction shall be multiplied by the difference between the two corresponding data points in the last column of the table, and the resulting product shall be added to the lower corresponding data point in the last column of the table, with the resulting sum being the Annual EBITDA Payout Factor. 2.2.2    The “Adjusted EBITDA” for any fiscal year shall mean the sum of the Company’s operating income for that fiscal year and the Company’s depreciation and amortization for that fiscal year, in each case as set forth in the audited fiscal year, and as adjusted in accordance with Section 2.4 below. 2.2.3    The “EBITDA Improvement” for any fiscal year shall be calculated by subtracting the Adjusted EBITDA for the immediately preceding fiscal year from the Adjusted EBITDA for that fiscal year, dividing the resulting amount by the Adjusted EBITDA for the immediately preceding fiscal year, and then expressing the quotient as a percentage and rounding to the nearest tenth of a percentage point. 2.2.4    The “Adjusted Operating Income” for any fiscal year shall mean the Company’s operating income for that fiscal year as set forth in the audited 2.2.5    “Material Discontinuance” shall mean a sale by the Company of all or any percentage interest of a business unit of the Company that is significant enough that a sale of all of the business unit would require discontinued operations accounting treatment or any other decision by the Company that requires a business unit to be accounted for as discontinued operations. 2.3    ROE Payout Factor. 2.3.1    The “ROE Payout Factor” shall be equal to the average of the Annual ROE Payout Factors determined for each of the two fiscal years of the Performance Period. The “Annual ROE Payout Factor” for each fiscal year shall be determined under the table below based on the Adjusted ROE for fiscal 2015 and the ROE Improvement for fiscal 2016; provided, however, that if the Adjusted ROE for any fiscal year is less than 0%, the “Annual ROE Payout Factor” for that fiscal year shall be 0%.      Fiscal 2015   Fiscal 2016   Annual ROE Adjusted ROE   ROE Improvement   Payout Factor           Less than _____   Less than _____   0% _____   _____   50% _____   _____   100% _____   _____   125% _____ or more   _____ or more   200% Fiscal 2015 Adjusted ROE at each performance level in the above table shall be recalculated using amounts reflected in the Company’s Fiscal 2015 Operating Targets document dated October 29, 2014 by reducing the consolidated operating income of the Company at each performance level by the corresponding amount of operating income at each performance level for the business unit that is the subject of the Material Discontinuance, applying the applicable tax rate consistent with the operating income targets to the resulting modified income before income taxes at each level, dividing the resulting net income at each level by the forecasted shareholders’ equity, and then rounding (up or down) to the nearest tenth of a percentage point. If the Adjusted ROE or ROE Improvement for any fiscal year is between any two fiscal year, the Annual ROE Payout Factor shall be determined by interpolation between the corresponding data points in the last column of the table as follows: the difference between the Adjusted ROE or ROE Improvement and the lower data point shall be divided by the difference between the higher data point and the lower data point, the resulting fraction shall be multiplied by the difference between the two corresponding data points in the last column of the table, and the resulting product shall be added to the lower corresponding data point in the last column of the table, with the resulting sum being the Annual ROE Payout Factor. 2.3.2    The “Adjusted ROE” for any fiscal year shall be equal to Adjusted Net Income for that fiscal year divided by Average Adjusted Shareholders’ Equity for that fiscal year, expressed as a percentage and rounded to the nearest hundredth of a percentage point. “Adjusted Net Income” for any fiscal year shall mean the net income (loss) attributable to SSI for that fiscal year as set forth in the audited consolidated statement of operations of the Company and its subsidiaries for the fiscal year, and as adjusted in accordance with Section 2.4 below. “Average Adjusted Shareholders’ Equity” for any fiscal year shall mean the average of five (5) numbers consisting of the Adjusted Shareholders’ Equity as of the last day of the fiscal year and as of the last day of the four preceding fiscal quarters. “Adjusted Shareholders’ Equity” as of any date shall mean the total SSI shareholders’ equity as set forth in the consolidated balance sheet of the Company and its subsidiaries as of the applicable date, and as adjusted in accordance with Section 2.4 below. 2.3.3    The “ROE Improvement” for any fiscal year shall be equal to the Adjusted ROE for that fiscal year minus the Adjusted ROE for the immediately preceding fiscal year. 2.4    Adjustments. 2.4.1    Change in Accounting Principle. If the Company implements a change in accounting principle during the Performance Period either as a result of issuance of new accounting standards or otherwise, and the effect of the accounting change was not reflected in the Company’s business plan at the time of approval of this award, then the Adjusted EBITDA, Adjusted Operating Income, Adjusted Net Income and Adjusted Shareholders’ Equity for each affected period shall be adjusted to eliminate the impact of the change in accounting principle. 2.4.2    Restructuring and Idling Charges. Adjusted EBITDA, Adjusted Operating Income and Adjusted Net Income for each fiscal year during the Performance Period shall be adjusted to eliminate the impact of any restructuring charges incurred by the Company during the Performance Period and any charges taken by the Company during the Performance Period resulting from the idling of facilities or equipment. 2.4.3    Impairments. Adjusted EBITDA, Adjusted Operating Income and Adjusted Net Income for each fiscal year during the Performance Period, and Adjusted Shareholders’ Equity as of each quarter end during the Performance Period, shall be adjusted to eliminate the impact of any charges taken by the Company during the Performance Period for impairment of goodwill or other intangible assets. 2.4.4    Discontinued Operations. Adjusted Net Income for each fiscal year during the Performance Period shall be adjusted to eliminate any profit or loss reported in the Company’s financial statements as discontinued operations. Adjusted EBITDA, Adjusted Operating Income and Adjusted Net Income for each fiscal year during the Performance Period shall be adjusted to eliminate (a) any and all operating income or income from joint ventures of any business unit that is the subject of a Material Discontinuance, and (b) any gain or loss or impact on operating income or net income from the full or partial disposition, either directly or through a joint venture of any Company subsidiary, substantially all of the assets of a Company subsidiary or a division or other material assets of a Company subsidiary, including related transaction expenses whether or not a transaction is completed. 2.4.5    Certain Environmental Accruals and Expenses. Adjusted EBITDA, Adjusted Operating Income and Adjusted Net Income for each fiscal year during the Performance Period, and Adjusted Shareholders’ Equity as of each quarter end during the Performance Period, shall be adjusted to eliminate the impact of any changes in environmental liabilities recorded during the Performance Period for investigation and remediation costs and natural resource damage claims in connection with the Portland Harbor Superfund Site and the other environmental matters listed as adjustments in the Company’s Fiscal 2015 Operating Targets document dated October 29, 2014 (“Environmental Accruals”). Adjusted EBITDA, Adjusted Operating Income and Adjusted Net Income for each fiscal year during the Performance Period shall also be adjusted to eliminate any fines, penalties, fees, costs and expenses incurred in connection with the Portland Harbor Superfund Site and the other environmental matters listed as adjustments in the Company’s Fiscal 2015 Operating Targets document dated October 29, 2014 (net of any insurance or other reimbursements thereof and excluding Environmental Accruals). 2.4.6    Inventory Adjustments. Adjusted EBITDA and Adjusted Operating Income for each fiscal year during the Performance Period (but not Adjusted Net Income) shall be adjusted to eliminate the impact of any charges taken by the Company during the Performance Period to reduce the recorded value of any inventories to net realizable value. 2.4.7 Share Based Compensation Adjustments. Adjusted EBITDA, Adjusted Operating Period shall be adjusted to eliminate any expense associated with any share-based payments to non-employees (other than directors). 2.4.8    Tax Impacts. All adjustments to Adjusted Net Income for the items listed in Sections 2.4.1 to 2.4.5 and 2.4.7 in any fiscal year shall be net of the discrete income tax impacts of the adjustments as certified by the Audit Committee based on the recommendation of the Chief Financial Officer. 3.    Employment Condition. 3.1    Full Payout. In order to receive the full number of Performance Shares determined under Section 2, Recipient must be employed by the Company on the October 31 immediately following the end of the Performance Period (the “Vesting Date”). For purposes of Sections 3 and 4, all references to the “Company” shall include the Company and its subsidiaries. 3.2    Retirement; Termination Without Cause After 12 Months. If Recipient’s employment with the Company is terminated at any time prior to the Vesting Date because of retirement (as defined in paragraph 6(a)(iv)(D) of the Plan), or if Recipient’s employment is terminated by the Company without Cause (as defined below) after the end of the 12th month of the Performance Period and prior to the Vesting Date, Recipient shall, subject to Section 4.1, be entitled to receive a pro-rated award to be paid following completion of the Performance Period. The number of Performance Shares to be issued as a pro-rated award under this Section 3.2 shall be determined by multiplying the number of Performance Shares determined under Section 2 by a fraction, the numerator of which is the number of days Recipient was employed by the Company since the beginning of the Performance Period and the denominator of which is the number of days in the period from the beginning of the Performance Period to the Vesting Date. Any obligation of the Company to issue a pro-rated award under this Section 3.2 shall be subject to and conditioned upon the execution and delivery by Recipient no later than the Vesting Date of a Release of Claims in such form as may be requested by the Company. For purposes of this Section 3.2, “Cause” shall mean (a) the conviction (including a plea of guilty or nolo contendere) of Recipient of a felony involving theft or moral turpitude or relating to the business of the Company, other than a felony predicated on Recipient's vicarious liability, (b) Recipient’s continued failure or refusal to perform with reasonable competence and in good faith any of the lawful duties assigned by (or any lawful directions of) the Company that are commensurate with Recipient’s position with the Company (not resulting from any illness, sickness or physical or mental incapacity), which continues after the Company has given notice thereof (and a reasonable opportunity to cure) to Recipient, (c) deception, fraud, misrepresentation or dishonesty by Recipient in connection with Recipient’s employment with the Company, (d) any incident materially compromising Recipient’s reputation or ability to represent the Company with the public, (e) any willful misconduct by Recipient that substantially impairs the Company’s business or reputation, or (f) any other willful misconduct by Recipient that is clearly inconsistent with Recipient’s position or responsibilities. 3.3    Death or Disability. If Recipient’s employment with the Company is terminated at any time prior to the Vesting Date because of death or disability, Recipient shall be entitled to receive a pro-rated award to be paid as soon as reasonably practicable following such event. The term “disability” means a medically determinable physical or mental condition of Recipient resulting from bodily injury, disease, or mental disorder which is likely to continue for the remainder of Recipient’s life and which renders Recipient incapable of performing the job assigned to Recipient by the Company or any substantially equivalent replacement job. For purposes of calculating the pro-rated award under this Section 3.3, the EBITDA Payout Factor and the ROE Payout Factor shall both be calculated as if the Performance Period ended on the last day of the Company’s most recently completed fiscal quarter prior to the date of death or disability. For this purpose, the Adjusted EBITDA and Adjusted Operating Income for any partial fiscal year shall both be annualized (e.g., multiplied by 4/3 if the partial period is three quarters) before determining the Annual EBITDA Payout Factor for that fiscal year, and the EBITDA Payout Factor shall be determined by averaging however many full and partial fiscal years for which an Annual EBITDA Payout Factor shall have been determined. Also for this purpose, the Adjusted Net Income for any partial fiscal year shall be annualized and the Average Adjusted Shareholders’ Equity shall be determined based on the average of Adjusted Shareholders’ Equity as of the last day of only those quarters that have been completed, before determining the Annual ROE Payout Factor for that partial fiscal year, and the ROE Payout Factor shall be determined by averaging however many full and partial fiscal years for which an Annual ROE Payout Factor shall have been determined. The number of Performance Shares to be issued as a pro-rated award under this Section 3.3 shall be determined by multiplying the number of Performance Shares determined after applying the modifications described in the preceding sentences by a fraction, the numerator of which is the number of days Recipient was employed by the Company since the beginning of the Performance Period and the denominator of which is the number of days in the 3.4    Other Terminations. If Recipient’s employment by the Company is terminated at any time prior to the Vesting Date and neither Section 3.2 nor Section 3.3 applies to such termination, Recipient shall not be entitled to receive any Performance Shares. 4.    Non-Competition. 4.1    Consequences of Violation. If the Company determines that Recipient has engaged in an action prohibited by Section 4.2 below, then: 4.1.1    Recipient shall immediately forfeit all rights under this Agreement to receive any unissued Performance Shares; and 4.1.2    If Performance Shares were issued to Recipient following completion of the Performance Period, and the Company’s determination of a violation occurs on or before the first anniversary of the Vesting Date, Recipient shall repay to the Company (a) the number of shares of Common Stock issued to Recipient under this Agreement (the “Forfeited Shares”), plus (b) the amount of cash equal to the withholding taxes paid by withholding shares of Common Stock from Recipient as provided in Section 7. If any Forfeited Shares are sold by Recipient prior to the Company’s demand for repayment, Recipient shall repay to the Company 100% of the proceeds of such sale or sales. The Company may, in its sole discretion, reduce the amount to be repaid by Recipient to take into account the tax consequences of such repayment for Recipient. 4.2    Prohibited Actions. The consequences described in Section 4.1 shall apply if during Recipient’s employment with the Company, or at any time during the period of one year following termination of such employment, Recipient, directly or indirectly, owns, manages, controls, or participates in the ownership, management or control of, or is employed by, consults for, or is connected in any manner with: 4.2.1    if Recipient is, or was at the time of termination of employment, employed by the Company’s Steel Manufacturing Business (“SMB”), any business that (a) is engaged in the steel manufacturing business, (b) produces any of the same steel products as SMB, and (c) competes with SMB for sales to customers in California, Oregon, Washington, Nevada, British Columbia or Alberta; 4.2.2    if Recipient is, or was at the time of termination of employment, employed by the Company’s Metals Recycling Business (“MRB”), any business that (a) is engaged in the metals recycling business, and (b) operates a metal recycling collection or processing facility within 75 miles of any of MRB’s metal recycling facilities; 4.2.3    if Recipient is, or was at the time of termination of employment, employed by the Company’s Auto Parts Business (“APB”), any business that (a) is engaged in the self-service used auto parts business, and (b) operates a self-service used auto parts store within 75 miles of any of APB’s stores; or 4.2.4    if Recipient is, or was at the time of termination of employment, employed in the Company’s Corporate Shared Services Division, any business that is described in Section 4.2.1, Section 4.2.2 or Section 4.2.3. 5.    Company Sale. 5.1    If a Company Sale (as defined below) occurs before the Vesting Date, Recipient shall be entitled to receive an award payout no later than the earlier of fifteen (15) days following such event or the last day on which the Performance Shares could be issued so that Recipient may participate as a shareholder in receiving proceeds from the Company Sale. The amount of the award payout under this Section 5.1 shall be the amount determined using a Payout Factor equal to the greater of (a) 100%, or (b) the Payout Factor calculated as if the Performance Period ended on the last day of the Company’s most recently completed fiscal quarter prior to the date of the Company Sale. For this purpose, the Adjusted EBITDA and Adjusted Operating Income for any partial fiscal year shall both be annualized (e.g., multiplied by 4/3 if the partial period is three quarters) before determining the Annual EBITDA Payout Factor for that fiscal year, and the EBITDA Payout Factor shall be determined by averaging however many full and partial fiscal years for which an Annual EBITDA Payout Factor shall have been determined. Also for this purpose, the Adjusted Net Income for any partial fiscal year shall be annualized and the Average Adjusted Shareholders’ Equity shall be determined based on the average of Adjusted Shareholders’ Equity as of the last day of only those quarters that have been completed, before determining the Annual ROE Payout Factor for that partial fiscal year, and the ROE Payout Factor shall be determined by averaging however many full and partial fiscal years for which an Annual ROE Payout Factor shall have been determined. 5.2    For purposes of this Agreement, a “Company Sale” shall mean the 5.2.1    any consolidation, merger or plan of share exchange involving the Company (a “Merger”) in which the Company is not the continuing or surviving corporation or pursuant to which outstanding shares of Class A Common Stock would be converted into cash, other securities or other property; or 5.2.2    any sale, lease, exchange or other transfer (in one transaction or a Company. 6.    Certification and Payment. As soon as practicable following the completion of the audit of the Company’s consolidated financial statements for the final fiscal year of the Performance Period, the Company shall calculate the Payout Factor and the corresponding number of Performance Shares issuable to Recipient. This calculation shall be submitted to the Committee. No later than the Vesting Date the Committee shall certify in writing (which may consist of approved minutes of a Committee meeting) the levels of Adjusted EBITDA and Adjusted ROE attained by the Company for fiscal 2015, the levels of, EBITDA Improvement and ROE Improvement attained by the Company for fiscal 2016, the Tax Impacts applied in calculating Adjusted ROE in each fiscal year and the number of Performance Shares issuable to Recipient based on the Company’s performance. Subject to applicable tax withholding, the number of Performance Shares so certified shall be issued to Recipient as soon as practicable following the Vesting Date, but no Performance Shares shall be issued prior to certification. No fractional shares shall be issued and the number of Performance Shares deliverable shall be rounded to the nearest whole share. In the event of the death or disability of Recipient as described in Section 3.3 or a Company Sale as described in Section 5, each of which requires an award payout earlier than the Vesting Date, a similar calculation and certification process shall be followed within the time frames required by those sections. 7.    Tax Withholding. Recipient acknowledges that, on the date the Performance Shares are issued to Recipient (the “Payment Date”), the Value (as defined below) on that date of the Performance Shares will be treated as ordinary compensation income for federal and state income and FICA tax purposes, and that the Company will be required to withhold taxes on these income amounts. To satisfy the required minimum withholding amount, the Company shall withhold the number of Performance Shares having a Value equal to the minimum withholding amount. For purposes of this Section 7, the “Value” of a Performance Share shall be equal to the closing market price for Class A Common Stock on the last trading day preceding the Payment Date. 8.    Changes in Capital Structure. If the outstanding Class A Common Stock of the Company is hereafter increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any stock split, combination of shares or dividend payable in shares, the Committee in the number and kind of shares subject to this Agreement so that the Recipient’s proportionate interest before and after the occurrence of the event is maintained. 9.    Approvals. The obligations of the Company under this Agreement are subject to the approval of state, federal or foreign authorities or agencies with jurisdiction in the matter. The Company will use its reasonable best efforts to take steps required by state, federal or foreign law or applicable regulations, including rules and regulations of the Securities and Exchange Commission and any stock exchange on which the Company’s shares may then be listed, in connection with the award evidenced by this Agreement. The foregoing notwithstanding, the Company shall not be obligated to deliver Class A Common Stock under this Agreement if such delivery would violate or result in a violation of applicable state or federal securities laws. 10.    No Right to Employment. Nothing contained in this Agreement shall confer upon Recipient any right to be employed by the Company or to continue to provide cause. 11.    Miscellaneous. 11.1    Entire Agreement. This Agreement constitutes the entire agreement of the parties with regard to the subjects hereof. 11.2    Notices. Any notice required or permitted under this Agreement shall be in writing and shall be deemed sufficient when delivered personally to the party to whom it is addressed or when deposited into the United States Mail as registered or certified mail, return receipt requested, postage prepaid, addressed to the Company, Attention: Corporate Secretary, at its principal executive offices or to Recipient at the address of Recipient in the Company’s records, or at such other address as such party may designate by ten (10) days’ advance written notice to the other party. 11.3    Assignment; Rights and Benefits. Recipient shall not assign this Agreement or any rights hereunder to any other party or parties without the prior written consent of the Company. The rights and benefits of this Agreement shall inure to the benefit of and be enforceable by the Company’s successors and assigns and, subject to the foregoing restriction on assignment, be binding upon Recipient’s heirs, executors, administrators, successors and assigns. 11.4    Further Action. The parties agree to execute such instruments and to take such action as may reasonably be necessary to carry out the intent of this Agreement. 11.5    Applicable Law; Attorneys’ Fees. The terms and conditions of this Agreement shall be governed by the laws of the State of Oregon. In the event either party institutes litigation hereunder, the prevailing party shall be entitled to reasonable attorneys’ fees to be set by the trial court and, upon any appeal, the appellate court. 11.6    Severability. Each provision of this Agreement will be treated as a separate and independent clause and unenforceability of any one clause will in no way impact the enforceability of any other clause. Should any of the provisions of this Agreement be found to be unreasonable or invalid by a court of competent jurisdiction, such provision will be enforceable to the maximum extent enforceable by the law of that jurisdiction. By________________________________________________________________________ Title_______________________________________________________________________

CATERPILLAR FINANCIAL SERVICES CORPORATION $8,000,000,000 CAT FINANCIAL POWERINVESTMENTSM VARIABLE DENOMINATION FLOATING RATE DEMAND NOTES Registration No.333-142550 Filed Pursuant to Rule 424 (b) (3) PRICING SUPPLEMENT NO. 11 (To Prospectus dated May 2, 2007) The Date of this Pricing Supplement January 18, 2008 The Cat Financial PowerInvestmentSM Variable Denomination Floating Rate Demand Notes (the “Notes”) bear interest at a floating rate per annum determined by the Cat Financial PowerInvestment Committee, or its designee, on a weekly basis to be effective on the following Monday. Currently, the interest rates payable on the Notes vary based on the principal amount of the Notes that an investor owns. The current Registration Statement for the Notes (No. 333-142550) was automatically effective on May 2, 2007. As of January 21,2008, the interest rates on the Notes will be as follows: Principal Amount of Notes

Name: Commission Regulation (EEC) No 2622/87 of 31 August 1987 re-establishing the levying of customs duties on footwear with outer soles of other materials, falling within heading 64.04, originating in South Korea to which the tariff preferences set out in Council Regulation (EEC) No 3924/86 apply Type: Regulation Subject Matter: tariff policy; Asia and Oceania Date Published: nan No L 248/231 . 9 . 87 Official Journal of the European Communities COMMISSION REGULATION (EEC) No 2622/87 of 31 August 1987 re-establishing the levying of customs duties on footwear with outer soles of other materials , falling within heading 64.04, originating in South Korea to which the tariff preferences set out in Council Regulation (EEC) No 3924/86 apply Whereas, in the case of footwear with outer soles of other materials, falling within heading 64.04, the individual ceiling was fixed at 3 285 000 ECU ; whereas, on 18 August 1987, imports of these products into the Commu ­ nity originating in South Korea reached the celling in question after being charged thereagainst ; Whereas, it is appropriate to reintroduce the levying of customs duties in respect of the products in question against South Korea, Whereas it is appropriate to re-establish the levying of customs duties in respect of the products in question against South Korea, THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to Council Regulation (EEC) No 3924/86 of 16 December 1986 applying generalized tariff prefe ­ rences for 1987 in respect of certain industrial products originating in developing countries ('), and in particular Article 15 thereof, Whereas, pursuant to Articles 1 and 12 of Regulation (EEC) No 3924/86, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I, within the framework of the preferential tariff ceiling fixed in column 9 of Annex I ; Whereas, as provided for in Article 13 of that Regulation, as soon as the individual ceilings in question are reached at Community level , the levying of customs duties on imports of the products in question originating in each of the countries and territories concerned may at any time be reintroduced : HAS ADOPTED THIS REGULATION : Article 1 As from 4 September 1987, the levying of customs duties, suspended pursuant to Regulation (EEC) No 3924/86, shall be re-established on imports into the Community of the following products originating in South Korea : Order No CCT heading No and NIMEXE-code Description 10.0690 64.04 0 (64.04-all numbers) Footwear with outer soles of other materials Article 2 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States . Done at Brussels, 31 August 1987. For the Commission Willy DE CLERCQ Member of the Commission (') OJ No L 373 , 31 . 12 . 1986, p. 1 .

Exhibit 31.1 RULE 13a-14(a) CERTIFICATION I, David Dorr, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Life Exchange, 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 small business issuer as of, and for, the periods presented in this report; 4. The small business issuer’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the small business issuer 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 small business issuer, 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 small business issuer’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 small business issuer’s internal control over financial reporting that occurred during the small business issuer’s most recent fiscal quarter (the small business issuer’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the small business issuer’s internal control over financial reporting; and 5. The small business issuer’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the small business issuer’s auditors and the audit committee of the small business issuer’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 small business issuer’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 small business issuer’s internal control over financial reporting. Date: David Dorr, Chief Executive Officer Acting Chief Financial Officer

2012 FORM OF AGREEMENT FOR NAMED EXECUTIVE OFFICERS OF THE COMPANY NON-QUALIFIED STOCK OPTION AGREEMENT PURSUANT TO THE MOTRICITY, INC. 2010 LONG-TERM INCENTIVE PLAN NAMED EXECUTIVE OFFICER GRANT Participant:     ________________________ Grant Date:     _________________________ Per Share Exercise Price: $_____ Number of Shares subject to this Option: _____________________ THIS NON-QUALIFIED STOCK OPTION AWARD AGREEMENT (this “Agreement”), dated as of the Grant Date specified above, is entered into by and between Motricity, Inc., a company organized in the State of Delaware (the “Company”), and the Participant specified above, pursuant to the Motricity, Inc. 2010 Long-Term Incentive Plan, as in effect and as amended from time to time (the “Plan”), which is administered by the Committee; and WHEREAS, it has been determined under the Plan that it would be in the best interests of the Company to grant the non‑qualified stock option provided for herein to the Participant. NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter set forth and for other good and valuable consideration, the parties hereto hereby mutually covenant and agree as follows: 1.    Incorporation By Reference; Plan Document Receipt. This Agreement is subject in all respects to the terms and provisions of the Plan (including, without limitation, any amendments thereto adopted at any time and from time to time unless such amendments are expressly intended not to apply to the award provided hereunder), all of which terms and provisions are made a part of and incorporated in this Agreement as if they were each expressly set forth herein. Any capitalized term not defined in this Agreement shall have the same meaning as is ascribed thereto in the Plan. The Participant hereby acknowledges receipt of a true copy of the Plan and that the Participant has read the Plan carefully and fully understands its content. In the event of any conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. No part of the Option granted hereby is intended to qualify as an “incentive stock option” under Section 422 of the Code. 2.    Grant of Option. The Company hereby grants to the Participant, as of the Grant Date specified above, a non‑qualified stock option (this “Option”) to acquire from the Company at the Per Share Exercise Price specified above, the aggregate number of shares of Common Stock specified above (the “Option Shares”). Except as otherwise provided by the Plan, the Participant agrees and understands that nothing contained in this Agreement provides, or is intended to provide, the Participant with any protection against potential future dilution of the Participant’s interest in the Company for any reason. The Participant shall have no rights as a stockholder with respect to any shares of Common Stock covered by this Option unless and until the Participant has become the holder of record of the shares, and no adjustments shall be made for dividends in cash or other property, distributions or other rights in respect of any such shares, except as otherwise specifically provided for in the Plan or this Agreement. 3.    Vesting and Expiration. (a)    Vesting. The Option subject to this grant shall become vested and exercisable as follows, provided the Participant is then employed by the Company and/or one of its Subsidiaries or Affiliates: (i) twenty-five percent (25%) of the shares subject to the Option shall vest in equal tranches (i.e., 6.25%) on each of the first four (4) anniversaries of the Grant Date specified above; and (ii) 75% of the shares subject to the Option shall vest on the third anniversary of the Grant Date specified above, subject to achievement of the following performance targets: 33% of 75% (i.e., 25%) of the shares must achieve a target price of $X, 33% of 75% (i.e., 25%) of the shares must achieve a target price of $X, and 33% of 75% (i.e., 25%) of the shares must achieve a target price of $X. The target price shall be determined based on the average of the closing prices of the Common Stock on a nationally recognized securities exchange, over a 90-day period and, if not listed, the fair market value as determined by the Company’s Board of Directors. If the target price is achieved for the requisite period, then the applicable target price shall be deemed achieved. There shall be no proportionate or partial vesting in the periods prior to each vesting date and all vesting shall occur only on the appropriate vesting date, subject to the Participant’s continued service with the Company and/or its Subsidiaries or Affiliates on each applicable vesting date. (b)     Effect of Termination for Cause. The provisions of Section 6.4(c) of the Plan regarding Termination for Cause shall apply to the Option. (c)    Expiration. Unless earlier terminated in accordance with the terms and provisions of the Plan and/or this Agreement, all portions of this Option (whether vested or not vested) shall expire and shall no longer be exercisable after the expiration of ten (10) years from the Grant Date (the “Expiration Date”). 4.    Termination.    Subject to the terms of the Plan and this Agreement, the Participant’s Termination shall impact the Option as follows: (a)    Termination due to Death, Disability or Retirement. In the event of the Participant’s Termination by reason of death, Disability or Retirement, the vested portion of this Option shall remain exercisable until the earlier of (i) one (1) year from the date of such Termination, and (ii) the expiration of the stated term of the Option pursuant to Section 3 hereof; (b)    Termination Without Cause or For Good Reason. In the event of the Participant’s Termination (i) by the Company without Cause, other than by reason of death, Disability or Retirement or (ii) by the Participant for Good Reason, the vested portion of this Option shall remain exercisable until the earlier of (I) ninety (90) days from the date of such Termination, and (II) the expiration of the stated term of the Option pursuant to Section 3 hereof. (c)    Termination for Cause. In the event of the Participant’s Termination (i) by the Company for Cause or (ii) by the Participant after the occurrence of an event that would be grounds for a Termination for Cause, then the Option granted hereunder (whether or not vested) shall terminate and expire upon such Termination. Furthermore, in the event that the Participant engages in behavior that would result in a Termination for Cause during the twenty-four (24) month period commencing on the date that the Option is exercised or becomes vested, the Company shall be entitled to recover from the Participant at any time within twenty-four (24) months after such exercise or vesting, and the Participant shall pay over to the Company, an amount equal to any gain realized as a result of the exercise (whether at the time of exercise or thereafter). (d)    Voluntary Termination. In the event of the Participant’s Termination by the Participant for any reason (other than Good Reason or after the occurrence of an event that would be grounds for a Termination for Cause, as determined by the Committee in its sole discretion), the vested portion of this Option shall remain exercisable until the earlier of (I) thirty (30) days from the date of (e)    Treatment of Unvested Option upon Termination. Any portion of this Option that is not vested as of the date of the Participant’s Termination shall terminate and expire as of the date of such Termination. 5.    Method of Exercise and Payment. (a)    Method. Subject to Section 9, to the extent that the Option has become vested and exercisable with respect to a number of shares of Common Stock as provided herein, the Option may thereafter be exercised by the Participant, in whole or in part, at any time or from time to time prior to the expiration of the Option as provided herein and in accordance with Sections 6.4(c) and 6.4(d) of the Plan, by the filing of an exercise notice in the form attached as Exhibit A hereto and payment in full of the Per Share Exercise Price multiplied by the number of shares of Common Stock underlying the portion of the Option exercised. No shares of Common Stock shall be issued until payment therefor, as provided herein, has been made or provided for. (b)    Condition of Exercise. As a condition of exercise, the Participant shall be required to certify, in a manner and a form acceptable to the Company, in its sole discretion, that the Participant is in compliance with the terms and conditions of the Plan and that the Participant has not engaged in, and does not intend to engage in, any behavior that would result in a Termination for Cause (as determined by the Committee in its sole discretion), as applicable. 6.    Executive Ownership Representation; Restrictions. The Participant hereby agrees (i) to own, within five (5) years of the Grant Date, shares of Common Stock equal in value to at least [one time (1x) / three times (3x); NOTE: 3x for the CEO only] the Participant’s annual base salary (determined as of the last day of the fifth year following the Grant Date); and (ii) that the Participant shall not be permitted to pledge shares of Common Stock or any equity award denominated in shares of the Company’s capital stock as collateral for investment purposes or otherwise. For purposes of this section, ownership shall include all shares of Common Stock deemed "beneficially owned" (as defined in Rule 13d-3(d) of the Securities Exchange Act of 1934 without regard to vesting) by the Participant, shares transferred for estate planning purposes or pursuant to a court order. Compliance will be evaluated on a twice-per-year basis, as of June 30 and December 31 of each year, and not on a running basis. Failure of the Participant to achieve the ownership guidelines within the timelines hereunder will result, in the sole discretion of the Committee, with forfeiture of this Option and may result in Termination for Cause. When calculating the number of shares of Common Stock that an executive is required to hold hereunder, the Participant’s base salary will be multiplied by [one (1) / three (3); NOTE: 3 for the CEO only] and then divided by the average closing price for shares of Common Stock over the thirty (30) trading days prior to the date of calculation as set forth above. Notwithstanding the foregoing, the Participant shall be permitted to sell or dispose of the necessary number of shares of Common Stock to pay any state, federal or local tax withholdings arising solely from the exercise of stock options to purchase shares of Common Stock or vesting of restricted shares of Common Stock, if any. In the event that Participant is no longer an active employee of the Company, whether through the termination of the Participant’s employment for any reason or retirement, Participant shall be required to continue to hold for at least six (6) months following such termination or retirement, 100% of the shares of Common Stock needed to meet the [one time (1x) / three times (3x); NOTE: 3x for the CEO only] annual base salary ownership threshold as in effect on the effective date of termination or retirement. 7.    Non-transferability. The Option, and any rights and interests with respect thereto, issued under this Agreement and the Plan shall not be sold, exchanged, transferred, assigned or otherwise disposed of in any way by the Participant (or any beneficiary(ies) of the Participant), other than by testamentary disposition by the Participant or the laws of descent and distribution. Notwithstanding the foregoing, the Committee may, in its sole discretion, permit the Option to be Transferred to a Family Member for no value, provided that such Transfer shall only be valid upon execution of a written instrument in form and substance acceptable to the Committee in its sole discretion evidencing such Transfer and the transferee’s acceptance thereof signed by the Participant and the transferee, and provided, further, that the Option may not be subsequently Transferred otherwise than by will or by the laws of descent and distribution or to another Family Member (as permitted by the Committee in its sole discretion) in accordance with the terms of the Plan and this Agreement, and shall remain subject to the terms of the Plan and this Agreement. Any attempt to sell, exchange, transfer, assign, pledge, encumber or otherwise dispose of or hypothecate in any way the Option, or the levy of any execution, attachment or similar legal process upon the Option, contrary to the terms and provisions of this Agreement and/or the Plan shall be null and void and without legal force or effect. Further, any shares of Common Stock acquired by a permissible transferee (i) upon the exercise of the Option by a permissible transferee or (ii) pursuant to a Transfer after the exercise of the Option shall be subject to the terms of 8.    Governing Law. All questions concerning the construction, validity and interpretation of this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof. 9.    Withholding of Tax. The Company shall have the power and the right to deduct or withhold, or require the Participant to remit to the Company, an amount sufficient to satisfy any federal, state, local and foreign taxes of any kind (including, but not limited to, the Participant’s FICA and SDI obligations) which the Company, in its sole discretion, deems necessary to be withheld or remitted to comply with the Code and/or any other applicable law, rule or regulation with respect to the Option and, if the Participant fails to do so, the Company may otherwise refuse to issue or transfer any shares of Common Stock otherwise required to be issued pursuant to this Agreement. Any statutorily required withholding obligation with regard to the Participant may be satisfied by reducing the amount of cash or shares of Common Stock otherwise deliverable upon exercise of the Option. Any fraction of a share of Common Stock required to satisfy such tax obligations shall be disregarded and the amount due shall be paid instead in cash by the Participant. 10.    Entire Agreement; Amendment. This Agreement, together with the Plan, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter. The Committee shall have the right, in its sole discretion, to modify or amend this Agreement from time to time in accordance with and as provided in the Plan. This Agreement may also be modified or amended by a writing signed by both the Company and the Participant. The Company shall give written notice to the Participant of any such modification or amendment of this Agreement as soon as practicable after the adoption thereof. 11.    Notices. Any notice hereunder by the Participant shall be given to the Company in writing and such notice shall be deemed duly given only upon receipt thereof by the General Counsel of the Company. Any notice hereunder by the Company shall be given to the Participant in writing and such notice shall be deemed duly given only upon receipt thereof at such address as the Participant may have on file with the Company. 12.    No Right to Employment; Agreement’s Survival. Any questions as to whether and when there has been a Termination and the cause of such Termination shall be determined in the sole discretion of the Committee. Nothing in this Agreement shall interfere with or limit in any way the right of the Company, its Subsidiaries or its Affiliates to terminate the Participant’s employment or service at any time, for any reason and with or without Cause. This Agreement shall survive the termination of the Participant’s employment for any reason. 13.    Transfer of Personal Data. The Participant authorizes, agrees and unambiguously consents to the transmission by the Company (or any Subsidiary or Affiliate) of any personal data information related to the Option awarded under this Agreement for legitimate business purposes (including, without limitation, the administration of the Plan). This authorization and consent is freely given by the Participant. 14.    Compliance with Laws. The issuance of this Option (and the Shares upon exercise of this Option) pursuant to this Agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act of 1933, as amended, the 1934 Act and in each case any respective rules and regulations promulgated thereunder) and any other law or regulation applicable thereto. The Company shall not be obligated to issue this Option or any of the Shares pursuant to this Agreement if any such issuance would violate any such requirements. 15.    Section 409A. Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent. 16.    Binding Agreement; Assignment. This Agreement shall inure to the benefit of, be binding upon, and be enforceable by the Company and its successors and assigns. The Participant shall not assign (except as provided by Section 7 hereof) any part of this Agreement without the prior express written consent of the Company. 17.    Headings. The titles and headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be deemed to be a part of this Agreement. 18.    Counterparts. This Agreement may be executed in one or more counterparts, 19.    Further Assurances. Each party hereto shall do and perform (or shall cause to be done and performed) all such further acts and shall execute and deliver all such other agreements, certificates, instruments and documents as either party hereto reasonably may request in order to carry out the intent and accomplish the purposes of this Agreement and the Plan and the consummation of the transactions contemplated thereunder. Specifically, as a condition to the receipt of shares of Common Stock pursuant to exercise of this Option, the Participant shall execute and deliver a stockholder’s agreement or such other documentation that shall set forth certain restrictions on transferability of the shares of Common Stock acquired upon exercise or purchase, and such other terms as the Board or Committee shall from time to time establish, for any such time prior to the Company’s capital stock being registered under the Securities Exchange Act of 1934, as amended, and listed for trading on a national securities exchange. 20.    Severability. The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of any provision of this Agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law. 21.    Acquired Rights. The Participant acknowledges and agrees that: (a) the award of the Option made under this Agreement is completely independent of any other award or grant and is made at the sole discretion of the Company; (b) no past grants or awards (including, without limitation, the Option awarded hereunder) give the Participant any right to any grants or awards in the future whatsoever; and (c) any benefits granted under this Agreement are not part of the Participant’s ordinary salary, and shall not be considered as part of such salary in the event of severance, redundancy or resignation. Motricity Inc.     By:   Name:   Title:   Participant     By:   Name:   Social Security Number:   EXHIBIT A MOTRICITY, INC. 2010 LONG TERM INCENTIVE PLAN EXERCISE NOTICE Motricity, Inc. 601 108th Avenue NE Suite 900 Bellevue, WA 98004 Attn: Chief Human Resources Officer 1. Exercise of Option. Effective as of today, ______________, 20___, the undersigned (“Participant”) hereby elects to exercise Participant’s option to purchase _____________ shares of the Common Stock (the “Shares”) of Motricity, Inc. (the “Company”) under and pursuant to the 2010 Long Term Incentive Plan (the “Plan”) and the Non-Qualified Stock Option Agreement, dated ____________, 20___ (the “Award Agreement”). 2. Delivery of Payment. Participant herewith delivers to the Company the full purchase price of the Shares, as set forth in the Award Agreement. 3. Representations of Participant. Participant acknowledges that Participant has received, read and understood the Plan and the Award Agreement, and agrees to abide by and be bound by their terms and conditions. Participant hereby certifies that he/she is in compliance with the terms and conditions of the Plan and that to the best of his/her knowledge that he/she has not engaged in, and does not intend to engage in, behavior that would result in a Termination for Cause (as defined in the Plan). 4. Lock-Up Period. Participant hereby agrees that, if so requested by the Company or any representative of the underwriters (the “Managing Underwriter”) in connection with any registration of the offering of any securities of the Participant shall not sell or otherwise transfer any Shares or other securities of the Company during the 180-day period (or such other period as may be requested in writing by the Managing Underwriter and agreed to in writing by the Company) (the “Market Standoff Period”) following the effective date of a registration statement of the Company filed under the Securities Act, and provided further that if requested by the Managing Underwriter or the Company, such Participant shall further evidence the foregoing restrictions by executing a “lock-up” agreement in the form provided by the Managing Underwriter or the Company. The Company may impose stop-transfer instructions with respect to the Shares and its other securities subject to the foregoing restrictions until the end of the Market Standoff Period. 5. Rights as Stockholder. Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder shall exist with respect to the Option Shares (as defined in the Award Agreement), notwithstanding the exercise of the Option (as defined in the Award Agreement). The Shares shall be issued to Participant as soon as practicable after the Option is exercised. No adjustment shall be made for a dividend or other right for which the record date is prior to the date of issuance except as provided in Section 4.2 of the Plan. 6. Tax Consultation. Participant understands that Participant may suffer adverse tax consequences as a result of Participant’s purchase or disposition of the Shares. Participant represents that Participant has consulted with any tax consultants Participant deems advisable in connection with the purchase or disposition of the Shares and that Participant is not relying on the Company for any tax advice. 7. Successors and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement shall inure to the restrictions on transfer herein set forth, this Agreement shall be binding upon Participant and his or her heirs, executors, successors and assigns. 8. Interpretation. Any dispute regarding the interpretation of this Agreement shall be submitted by Participant or by the Company forthwith to the Committee (as defined in the Plan) which shall review such dispute at its next regular meeting. The resolution of such a dispute by the Committee shall be final and binding on all parties. 9. Governing Law; Venue. This Agreement and any disputes or claims arising hereunder shall be construed in accordance with, governed by and enforced under the laws of the State of Delaware without regard for any rules of conflicts of law. Any action at law, suit in equity or judicial proceeding arising directly, indirectly or otherwise in connection with, out of, related to, or from this Agreement, or any provision hereof, shall be litigated only in the courts of the State of Delaware and the parties each hereby waive the right to a trial by jury of any claim, demand, action or causes of action under this Agreement. Participant and the Company consent to the jurisdiction of such courts over the subject matter of this Agreement. Participant waives any right Participant might have to transfer or change the venue of any litigation brought against Participant by the Company. 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Title: (IL) Kicked out without notice. I wasn’t on the lease. Question:After a night of drinking the girl letting me stay with her decided to kick me out after I asked her to buy me a hot dog and called her cheap when she refused. I filled her fridge and her gas tank for the first week and paid her $300 in advance for the next 3 weeks. I dropped her off on the side of the street and raced home(I have a spare key). When she showed up she threatened to call the cops but since she didn’t have my money I smashed her phone and TV (I know, dumb but I’m replacing it today). She’s refusing to give me the $300 back. I’ll take her to court for the money if I have to but can I press charges for being evicted without notice? (Verbal agreement, I wasn’t on the lease) Topic: Small Claims Procedure Answer #1: You could theoretically sue for illegal eviction, but I truly don't see you making a successful claim. Also, you committed some actual *crimes* so maybe you don't poke this bear, because poked bears file police reports.Answer #2: You should just walk away if she let's you. If this moves forward you will end up in much worse shape then she did. Your actions were a lot worse.

Combating the rise of extremism in Europe (debate) The next item is the Commission statement on combating the rise of extremism in Europe. Member of the Commission. - (IT) Madam President, ladies and gentlemen, first of all let me express my strong personal concerns about the rise in activities in Europe which have to be attributed to violent and extremist groups and organisations. In my view, therefore, today's debate is extremely important, because it is not just extremism which leads to terrorist acts - extremism about which we have talked on many occasions in this House - but also those activities and developments which are more properly to be seen as racism, anti-Semitism, xenophobia, nationalist extremism, Islamophobia, all those forms of intolerance which, as I said, are worryingly common in Europe, and which, in my view, are absolutely incompatible with and run entirely counter to the values of the European Charter of Fundamental Rights which we proclaimed this morning. There can be no doubt that extremism, by its very nature, is divisive and leads to violence. That is why the first goal, in my view, is a political goal. That will obviously lead me to mention measures which have more to do with security and policing; however, faced with the problem of extremism and its origins, we need once again to promote a European Union which is ever closer to citizens and therefore more able to pass on messages of tolerance, solidarity and respect for the Charter which, as of today, is one of the cornerstones binding on Member States and on citizens. I believe that there can never be any justification for extremism; while we have said that many times about terrorism, we also need to say it about racism, for instance, and about xenophobia. However, we also have to explore the deep-seated origins of extremism and violence. We have a duty to do so, because we have a duty to introduce European policy measures that can help not just to counter but also to prevent and eradicate extremist developments and activities. I should like to cite a few examples which, in my opinion, show that a European policy may be genuinely useful and more useful, if I may say so, than a policy which is solely national. From the point of view of citizens' participation in the political life of Europe, it is very important for that programme - and it is not by chance that the European Commission is financing such a programme on fundamental rights and citizenship - to contain policies and measures encouraging citizens to play more of a role in political life, in the life of the institutions, and therefore, for instance, in events such as the European elections. 2009 offers us a golden opportunity to foster a debate that leads to a large turnout to vote reflecting positive participation in the life of the institutions. It is nevertheless clear that the other policy measure that we are expecting from Europe and that Europe is keen to promote involves education, especially for the younger generations. In my view, that - a policy to keep the memories of past tragedies alive in people's minds and to do so among today's younger generations, among students and among young people, even the very young - is also extremely important. For instance, all the programmes which we support and which I believe should be further encouraged, programmes which keep alive the memory of the victims of all the dictatorships, of all the totalitarian regimes that have devastated Europe in the past, are, in my view, tools that can be put to good use in eradicating extremism and racism; from the history of the concentration camps, for instance, we can draw a lesson for today's young people so that tragedies of that kind never happen again, not just in Europe but in any part of the world. Then there is another policy measure that I believe we can and must bear in mind: those measures that more generally promote tolerance and dialogue between different cultures and obviously between different religions. We have two major opportunities, one this year, which is the European Year of Equal Opportunities for All - and we plan to review the initiatives that have taken place during the year - and one next year in 2008, which is the European Year of Intercultural Dialogue, of dialogue between different cultures and between civilisations. In my view, the 2007 review and the 2008 programme offer a golden opportunity to make people and, I would stress again, younger people, more aware of a spirit of dialogue which enriches, a dialogue through which everyone can grow together. It is undoubtedly important to keep the public aware of the importance of promoting rights and eradicating extremism, violence and intolerance. Here, the European Agency for Fundamental Rights has a role to play, which is what we wanted and what this House strongly supported; just as the Vienna monitoring centre on racism, xenophobia and anti-Semitism has in the past been an instrument for a very important sector, the fight against anti-Semitism, the Agency for Fundamental Rights will also be an instrument. The Agency, as the main protagonist in this field, will have a very important role to play. There, as you know, we are preparing the multi-annual framework which we are discussing in close cooperation with Mr Cashman, and we take the view that the Agency's multi-annual planning framework will provide us with useful instruments for our common action to prevent extremism. Over and above that, we obviously have to react: while those are all important prevention policies, we also need to react. I fought personally, in the Council of Ministers as well, for a European law - and we reached agreement on this last April - for a European law under which acts motivated by racism and xenophobia can be punished and those committing such acts are punished in the same way in any country of the European Union. It is not just the physical act, but also concrete incitement, the dissemination of hatred, those messages that frankly cannot be confused with freedom of expression which is a sacred right for all of us. Here, we are speaking of concrete incitement to act, to commit violence. That framework decision was agreed by the Member States last April. Think of those awful manifestations of racism: at sports events, during football matches where people take the opportunity to shout neo-Nazi slogans, those are the kinds of act that the framework decision - which we genuinely wanted and which we agreed with the German Presidency - will punish. I say will punish, using the future, as unfortunately, and this is an appeal to your sensibility, between April and now the reservations of the national parliaments of some Member States have not been withdrawn with the result that the procedure leading to the entry into force of this European law to punish racism and xenophobia has been blocked. I say this with absolute respect for the national parliaments; however, as the government holding the presidency of the Council of Ministers has given its agreement, I believe that it must take steps with its own parliament, so that its reservation is withdrawn as soon as possible, and we can finally ensure that the framework decision comes into force after three and a half years of lengthy discussion. In conclusion, ladies and gentlemen, we already have legislation in other sectors which punishes discrimination based on race and ethnicity, and that legislation will undoubtedly be respected with the supervision, if I may put it that way, of the European Commission which is responsible for ensuring compliance with European law. I would point out, for instance, the recent directive on 'borderless' audiovisual services which very clearly establishes, from its entry into force, that audiovisual services must not contain any incitement to hatred on grounds of sexual orientation, race, religion or nationality. It is precisely to achieve all that that policing measures are not enough, criminal law is not enough, prosecutions are not enough: what is needed is a deep-seated culture of individual rights, of value for the human person! What we said this morning when we were celebrating the European Charter of Fundamental Rights! I believe that this is one of the policies, at a time when we are preparing to ratify the Treaty of Lisbon, through which Europe can offer the world a lesson on the ways in which these hateful crimes against the human person can be eradicated. on behalf of the PPE-DE Group. - (DE) Mr President, Commissioner, ladies and gentlemen, it is scarcely believable. Four or five weeks ago I was invited to attend a counter-demonstration to a demonstration organised by parties of the far Right in my region. There were only 30 extremists demonstrating, whereas a large gathering of more than a thousand had assembled to demonstrate against them. In those circumstances, when you stand in front of those right-wing extremists, you say to yourself, 'This is scarcely believable'. After that century in Europe, how can anyone revert to extremism, go back to strutting about full of hatred and arrogance and agitating against others? The debate we are holding today is welcome and important. Extremism is a cancer in our society. Time and again we politicians appeal to people's moral courage, expecting them to rise up and protest against this extremism. I believe it is also time to give thanks that such moral courage exists in abundance, that so many people do rise up in protest. What is extremism? Let me stress that, when we speak of banning political parties, of banning the public expression of opinions and positions, it goes without saying that such measures must not be based on political judgements. They must be based on an objective criterion. We have defined that objective criterion today in the Charter of Fundamental Rights, which sets out the essence of our basic values. If parties or politicians attack those values, the courts must decide whether their actions are illegal and, if so, impose a ban. What should be done if candidates of extremist parties are elected, if such parties win seats? Firstly, there must be no cooperation with these parties, and I am grateful to the Socialist Members, who have expelled their Slovakian member party from their ranks for cooperating with extremists. Secondly, we must not overlook the fact that such electoral successes stem from public dissatisfaction, and we must not respond to them by maligning voters but rather by addressing underlying issues. Thirdly, I wish to emphasise that extremism often begins with small steps in the party landscape too, and we must be aware of this. My message is therefore 'Do not let it take root!' Political extremism exists on the Left and Right, and both are equally bad. That needs to be emphasised. Europe has experienced extremism, and Europe has suffered from extremism. Progress has been made in the fight against extremism. It is a fight that is worth waging. And it is a fight that we shall ultimately win. Mr. Chairman, Commissioner Fratini, Thank you for the understanding and the presentation on the intentions of the Commission. I find it symbolic that precisely today, when the Charter of Fundamental Rights was signed, we are discussing a topic directly related to it. For the growing extremism, the growing influence of extreme right-wing parties and organisations is a direct threat to the existence of the European Union. It might sound too strong but our Union is based on clear principles and its existence is possible thanks to the fact that peace, solidarity, tolerance, mutual respect among ethnic and religious communities, and the peaceful co-existence of nations prevailed in Europe 50 years ago. Today, the extreme right-wing attacks exactly these principles; it attacks the very heart of the European Union, without which it could not possibly exist. But our Union is not an abstract construct; it is not just another administrative level of governance. It is a union whose mission is to defend and protect the values underlying the whole world. Willing or unwilling, prepared or unprepared, we have to understand that there are people deprived of fundamental rights, suffering from political reprisals, oppressed by non-democratic regimes or discriminated against on the basis of race, ethnic origin and religion in all parts of the world. And, in all parts of the world, there is the hope that the European Union will support them and that the spirit of tolerance, guaranteed civil rights and social security can reach their country, too. Can we be powerful and convincing in the outside world if we fail to cope with the problems in our own backyard? How can we explain to the people who pin their last hopes on us that immigrants die just because of their origin, that ethnic minorities are subjected to systematic discrimination, that partisan ideologies challenge the equality of women or define homosexualism as a disease? How can we explain that we are on the way of forgetting the gloomiest pages of our history and that young people praise Hitler and anti-Semitism is turning into the vogue of the day? I cannot accept this and neither can my collegues Socialists. I believe that there is no political group in this Parliament to remain indifferent to the fact that right-wing extremism, racism, xenophobia are gaining new grounds. Didn't we become witness today how a historic landmark in the development of the European Union was disgraced in a vulgar manner by a noisy minority that could come back stronger, more aggressive and better organised in 2009? Under the hypocritical demand for a referendum, it challenged not merely the Charter of Fundamental Rights but fundamental rights themselves. It is this behaviour that we see also in many national parliaments encourages extremists who would resort to yet another punitive action tomorrow, inspired by this political circus. We must name problems very clearly and seek solutions together. Therefore we shall put this issue on the agenda of the Parliament over and over again. Because extremism is an all-European challenge which necessitates the cocerted efforts at the European, national, regional and local level. If the European Commission is the custodian of the EU Treaties, then the European Parliament is the custodian of the values and I believe that together we shall be able to withstand a rising wave familiar from the recent past. And that we shall stop it, without violating fundamental rights like the right of free expression, the right of assocation, the freedom of the media. For one can fight for democracy only according to the rules of democracy. Breaking these rules will mean that extremism has prevailed. Thank you. on behalf of the ALDE Group. - (ES) Mr President, a few weeks ago a young man by the name of Carlos Palomino lay dying of stab wounds in the Madrid metro following a clash with right-wing extremists. Shortly before, in the Barcelona metro, a madman had been caught by TV surveillance cameras striking a young girl because she was an immigrant, just because of the colour of her skin - so she said - without knowing that he was being filmed and without knowing that his actions were going to be broadcast around the world. These and other similar cases have been repeated in various parts of Europe. Often, with a sometimes exaggerated feeling of responsibility, we and all politicians who are concerned by this phenomenon, try to minimise the significance of such attacks: we must not be alarmed, we say; at the end of the day these are isolated incidents, there are not all that many madmen about, we must not exaggerate, it is not a serious problem. We therefore label these attacks as minor because it frightens us to acknowledge that at best, in fact, this is not a minor matter. Among other things, because, as the resolution on which we are going to vote tomorrow correctly suggests, many of these neo-Nazi and right-wing extremist organisations are playing on feelings of fear which already exist in our society, and which we cannot hide. Therefore, it is not enough to condemn. We need to open our eyes and act responsibly and face up to something which is not just an isolated phenomenon; without causing alarm, we must acknowledge its real scale and extent. The day on which we signed the Charter of Fundamental Rights is a good day to remember that the European Union has a role to play and has its responsibility in this area. There is no subsidiarity when it comes to defending the dignity of persons or denouncing racism, xenophobia and intolerance. Action is needed at European level, firstly on the part of the Commission and the Agency for Fundamental Rights, in order to examine what kind of ramifications and networks there are behind all this - if any - what links there are between the various extreme right-wing movements, in order that we can apply legislation, contribute through education policies and support educators who teach about diversity, and, where necessary, forcibly denounce those politicians, social leaders, sportspeople etc. who, either passively or actively, lie behind these actions. on behalf of the UEN Group. - (PL) Mr President, growing extremism in Europe is a fact, and we need to talk about it. The Commissioner said a great deal, but he spoke in general terms and about matters of secondary importance such as racism at football matches. We need to talk about the facts, the political extremism we are witnessing at the present time in the European Union. Yesterday, Mr President, the leader of the NPD, a neo-fascist party, appeared on Germany's public television channel, ARD, and demanded that Poland immediately return Pomerania and Silesia to Germany. He declared that Kaliningrad, Gdańsk and Wrocław are German cities and demanded German jurisdiction over them. He also demanded that those cities and territories, which are part of Poland, should be returned to Germany immediately. We are talking about events in Germany, a leading country in the European Union. For some years now, the German fascists in the NPD have been calling for the revision of frontiers, repudiating the international treaties that ended the Second World War, and demanding that borders be pushed back. Commissioner, we cannot permit this. There has to be a strong reaction. We cannot permit the public television service of any country, in this case Germany, to allow neo-fascists and Nazis to air their revisionist views and calls for another war. This is not a marginal problem, ladies and gentlemen. It is very real. The party in question has representatives in seven regional parliaments. This cannot be tolerated in Europe today, just as we cannot tolerate democratic principles, freedom to differ and freedom of speech to be undermined as they were today by Mr Cohn-Bendit and Mr Watson, who, referring to differences of opinion over the Charter of Fundamental Rights - or rather, not so much the Charter as the EU Reform Treaty - called the Members who were opposing him idiots. That cannot be allowed. That is not the approach to democracy and the present European Union that we should be teaching our young people. Let us be united in diversity. on behalf of the Verts/ALE Group. - Mr President, I think the part of the issue that we are looking at is: how do we combat what all of us see as extremism, this fear of the other, this desire to protect their own culture, as if it is the only culture, as if it has never changed, as if there has never been anything that has shifted in their lives? And yet we only have to look back over the last 50 to 60 years to see the enormous changes that have gone on, even within our own continent. I think that desire to protect often comes from a feeling of fear that, somehow or other, you and your idea of yourself are going to disappear and, therefore, you want to project your strength against others and deny them their existence. I think all of us here feel a pride in who we are, in the country that we come from or our region or our heritage. But we do not, most of us, expect that to be passed on only through a bloodline, somehow, and a deep connection with territory, but through citizenship, through law and through our rights. And as others have said, the signing of the Charter of Fundamental Rights here today was an extremely important symbol particularly attached to this debate. But when we are looking at the election of extremist parties who only have one view of what is right - what is theirs - I think what we see is a legitimisation of violence, of hate speech, of actions against others that they see as different. I remember the time when, a number of years back, we heard of the election of a single member of the British National Party to a local council in London. The level of racist violence went up in that area. (Cry of 'Bravo!') That is not a cause for 'Bravo!' That is shameful! How can you say that and sit in a House where you claim to be democrats? Racist violence is to be condemned. And, when we are looking at extremism, I think we ought to be aware that we have not yet seen the death of sexism and misogyny. But the election of such parties raises the level of fear and, therefore, we need to think about how we react to that. We react to it by also making sure that our actions uphold human rights and the values which we hold dear. We have to beware that we ourselves do not pass laws that in seeking to deal with one example of extremism actually give succour to those people or strike fear into the hearts of other communities. I commend the joint motion to the House today and thank all colleagues who have worked so hard on it. on behalf of the GUE/NGL Group. - (IT) Mr President, ladies and gentlemen, I should like to thank Vice-President Frattini and all the fellow Members who have worked with me, and the proposers, to draw up this resolution. Manifestations of racism and xenophobia have increased in recent years, as is borne out by the reports of the European Monitoring Centre on Racism and Xenophobia. This increase is closely linked to the growth and proliferation of political forces which, in Europe, have interpreted the problems raised by immigration in an aberrant way, often to put forward slogans defending race and identity, and to stir up feelings of self-preservation against those entering Europe, describing them as terrorist threats or criminals, or even branding them with unacceptable anthropological names and xenophobic and racist slogans. Parties and movements which in recent years have had strong anti-European nationalist leanings, and are highly racist, are on the increase. Their political propaganda draws on social insecurity and tries to add pieces to the mosaic of the war of civilisations. That propaganda is now a mainstream part of the political and institutional debate and in some cases, seems to be the message emerging from governments or as the result of the activities of governments. Tomorrow, we shall vote on a resolution on extremism, a title which is perhaps a little vague. Lenin said that extremism is the infantile disease of communism; we could paraphrase Lenin and say that extremism is perhaps an infantile disease of all political, religious, economic and ideological programmes. Mr Weber is right: there is left-wing extremism and right-wing extremism, but there is not just left-wing and right-wing extremism, there is neo-liberal extremism, Catholic extremism, Muslim extremism, ecological extremism and anarchic-insurrectionist extremism. The problem in Europe, however, is the growth of right-wing extremism and the problems which are causing right-wing extremism to proliferate. Neo-nazi and neo-fascist political forces and movements have been set up in recent years in Europe and have made it their policy to work against European integration - we have seen them in Italy, in France, in Austria, in the Netherlands, in Belgium, in the United Kingdom, in Germany, in Denmark, and in Switzerland; they reflect the crisis that has led an intellectual such as Alfio Mastropaolo to describe the offensive of the new right as the mad cow of democracy. The democratic legitimisation of certain political forces has helped dangerous ideas to spread into the body of European society, feeding reactionary leanings. A dangerous, and in some cases underestimated, disease which feeds on ethnocentric proclivities, often concealed and hidden, in some cases masked by seemingly democratic and legitimate acts. We therefore need to question our choices and our political initiatives. There is a growing emphasis on the need to establish and consolidate a shared European culture and identity. I believe that a European identity and culture must be built on the basis of dialogue and contact with cultures other than those that have in recent years promoted and paved the way for the dissemination and the growth of a European idea, a European culture. A major cultural battle is needed, and that is my conclusion. Police or public security activities are not enough; there needs to be a major cultural effort and only in that way will we manage to ensure that 2008 is actually the European Year of Intercultural Dialogue, because Europe must be founded on intercultural principles. (ES) Mr President, I would be grateful if you would use your authority as President of this sitting to call to order a group of Members who seem to think they are at the circus and not Parliament and are spoiling the quality of this debate by their joking and cheering. We are nearing the end of the year and it is normal to have meals at which you drink a little over the odds or at least more than usual. The best idea in that situation is to have a siesta and not to disturb a debate where respect for the speaker should prevail at all times. Thank you for your appeal but, as I said, anyone having a few drinks with his meal is best advised to have a siesta afterwards and not to interrupt our debates by his rudeness and lack of Parliamentary manners. on behalf of the IND/DEM Group. - Mr President, I detest extremism as much as anyone. British people do - we have been fighting it for centuries. If you want to combat rising extremism in Europe, look at its causes before you rush into yet more legislation which only restricts; it breeds extremism. Let us look at the high-water mark of European extremism, the Fascists of the 1930s. In Britain, the marches of Sir Oswald Mosley were protected by law and arid hateful policies thus exposed to the light of day were rejected by the people. Across Europe, Fascist leaders were vilified and obstructed. Hitler himself was imprisoned - so he, like the others, gained power. This morning, we saw the rise of extremism in this Chamber with the signing of the Charter of Fundamental Rights, part of the Constitution for Europe to be signed tomorrow and on which a national referendum was promised in seven countries. Two said yes, two said no - but were ignored - while the others are waiting. In the UK, our Government gave a written promise, now denied. So much for the talk in this Chamber about listening to the people! For the EU are today's extremists, seeking to impose their will by way of this distorted document. It has been deliberately written so that no one beyond experienced lawyers can read it, with its numbered paragraphs taken from both the original and the existing Treaties, but which do not correspond between the documents. The numbering will be changed for the signing and changed again afterwards to make quite sure that the people of Europe cannot understand it. And this pseudo-democratic distortion is to be foisted on the people of Britain! No thanks - we have got our rights already, embodied in the great and wonderful Magna Carta of 1215, supplemented by the Bill of Rights of 1689. Just who do you think you are to overthrow these democratic measures laid down for us but open for all to follow? History ignored becomes history repeated. Over the centuries you ignored our lead and paid the price! Ignore our example now, and you are on your way to perdition. (Applause from his group) (FR) Mr President, this must be the umpteenth report on the so-called rise of extremism in Europe. The Council, the Commission and the political groups have all pitched in with their tuppence-worth and, as usual, the rhetoric is intellectually pitiful, politically disgraceful and morally perverse. It is intellectually pitiful because every new idea that ever was - in religion, including the Christianity that some of you are bold enough to say you espouse; in politics whether liberalism or socialism; in science, including concepts now taken for granted, like the earth being round and rotating about the sun - has been considered extremist, heretical, subversive and unacceptable. You cannot discredit an opinion simply by demonising it: you need to explain what makes it flawed. The political disgrace is entirely of your making - you, the people in power who, instead of resolving problems, care only about fighting off the opposition. All you are doing is highlighting your inability to solve the problem of immigration - of an invasion in which you, either deliberately or through cowardice, have colluded. What you are admitting here is that you have failed - on the economic front, the social front, the cultural front and the moral and educational fronts - and that, instead of changing your disastrous policies, your only concern is to get rid of those who protest or who criticise you. It is in moral terms, however, that your attitude is most repugnant. You falsely equate violence and terrorism with the legitimate reaction of Europe's people against the destruction of their identity. What hypocrites you are! You want to muzzle these people and deprive them of political representation: you are the Pharisees of democracy! You are what the Bible calls 'whited sepulchres'; in other words, your sincerity is less than skin deep! You talk about human rights and freedom of expression, about Europe's values and about tolerance, but underneath the whitewash it is all rot. You would deny to anyone who fails to think like you the very rights that you harp on about. All of this would be odious, were it not so grotesque. Tomorrow's generations will pass judgment on you as the Barbarians passed judgement on Rome. I hope, at least, that the Barbarians will give you what you deserve! (RO) Ladies and Gentlemen, the subject we are debating this afternoon is one of maximum importance for the future of the European Union and for the security of citizens and our values. Over the last years, extremism has been an ever more frequent phenomenon in the public life of European countries, a phenomenon that has raised many alarm bells and many questions as regards fighting it. Although various causes with different origins have contributed to the spreading of this phenomenon, I would like to insist on an essential aspect of the debate created on the subject of extremism, namely immigration. Extremist groups identify immigration as the supreme evil in the European countries, because it is a subject that they can use in order to explain the unwanted changes in their societies. Nevertheless, as we all know, immigration is a vital element for the economies of European countries and favourable for economic growth. Its unwanted effects, arising from the inadaptation of immigrants to the societies that receive them, should be solved by methods that are specific to the European Union. Otherwise, we are in danger of changing the very basic values of the European construction. Therefore, we cannot accept the extremist parties changing the agenda of traditional parties. If we use such a strategy in an attempt to reduce the risks and dangers entailed by such groups and to prevent them from obtaining votes from our citizens, we will only offer legitimacy to their ideas and methods. We cannot allow messages of an extremist nature to be adapted and promoted as law in Member States. Such an action means destroying the vision of a multicultural and multiethnic Europe. The crisis generated by the issue of the Roma and the extremist manifestations in Italy must not create a dangerous precedent for the fundamental principles of the European Union regarding the freedom of goods, services, capital and persons. We must explain to our citizens that such an attitude would be harmful both to their societies and to the European Union, as a whole. The results of the European Parliament elections in Romania could be an example in this regard. No extremist party has reached the threshold of necessary votes in order to send their representatives to the European Parliament. (ES) Mr President, I would like to take a few seconds over my allotted time merely to direct at those in the back seats, on the right over there, a traditional Castilian saying: 'A palabras necias, oídos sordos - silly words will be met with a deaf ear'. I will now continue my speech in English. Today, as we have very proudly signed the Charter of the Fundamental Rights of the European Union, it is more than half a century since Europe assisted in the most outrageous crime of xenophobia and racism - the Holocaust. Millions of people were killed because of their religion, their ethnic background and their political beliefs. Therefore, it is more necessary than ever to bear history in mind by living our present and preparing for the future. We have to be alert and watchful; beware of the eggs of the snake, as Ingmar Bergman taught us. As Commissioner Frattini has confirmed today, there is a resurgence of violent acts with racist and xenophobic origin in our Member States. But, to me, what is even more preoccupying is that more and more young people get involved. Therefore, it is absolutely essential that we teach them citizenship and to be aware of what racism is about. More and more extremist right-wing parties which base their ideology and political practices on intolerance and exclusion are voted into national parliaments. There, they have an excellent platform for their political message of hate. We should be aware of this and try to do things to counteract that as well. Racism and xenophobia are the most direct violations of the principles of freedom and democracy and our fundamental rights. So the European institutions and we, the Members of Parliament, are obliged to reaffirm our determination to uphold fundamental freedoms and to condemn and combat any manifestation of racism and xenophobia by means of law. More than ever, zero tolerance is requested to combat racism and xenophobia. More than ever we have to be belligerent in defending our values, using and strengthening the instruments available to the European Union and its Member States. No single citizen should ever suffer from persecution because of his or her race, religion, gender, social situation, language, nationality or sexual orientation. The eradication of racism and xenophobia, the right to live in peace, is a moral challenge to all democrats, and to defend civil rights is the duty of every democrat. (HU) Thank you very much, Mr President, Commissioner, ladies and gentlemen. Yesterday we spoke for nearly two hours about the fight against the rise of extremism and the final text of the resolution that is based on liberal initiatives, but of course we have throughout taken into account the ideas and requests of all the groups. I am optimistic, and I trust that there will be a common position on this painfully important topic. Personally, I am very sorry that in 2007, the year of equal opportunities, we are still obliged to fight the shadows of fallen dictatorships from the 20th century that creep out from time to time. We know that there are no Member States that are exceptions to this. Just to mention a couple by name: Pospolitos in Slovakia, the Young Nationalists in the Czech Republic, the New Right in Romania, the German National Democratic Party in Germany and the National Alliance in Italy, but we largely face the same extremism. To speak of my own country, it is unacceptable for me that every day statements are issued by extremist parties and organisations like the Movement for a Better Hungary or the Hungarian Guard, in which they explain the conceptually absurd criminality of gipsies with genetic reasons, and instead of integrating the Roma into society they demand segregation and ghettos, whilst they march in black uniforms in Tatárszentgyörgy, and on Friday in Kerepes. In connection with this, I would again like to draw the attention of my fellow Members to the fact that so many of the gypsy settlements in Europe are still targets for extremist forces, even today. And now some news for the end of my statement. The Hungarian Ombudsmen, the President of the Republic and the Hungarian Government have officially condemned the Hungarian Guard and the Movement for a Better Hungary. We would like all responsible European governments to do the same in the face of their own extremism. In any case, in order to do this it is necessary that as many of my fellow Members as possible vote yes tomorrow on the Parliament's position on the fight against rising extremism. Thank you. Mr President, today we witnessed a proclamation of the Charter of Fundamental Rights, and we are now discussing the rise of extremism in Europe. To my mind, there is very clear link between the two. The EU Agency for Fundamental Rights was, until recently, known as the European Monitoring Centre on Racism and Xenophobia. We cannot combat extremism without addressing the issues of racism and xenophobia, which are all too present in Europe today. Extremism breeds extremism, and we in Europe are in danger of finding ourselves caught in a very vicious circle if we do not move swiftly to tackle and eliminate some of these root causes. I listened to Mr Gollnisch earlier on, calling people in this House and others barbarians. He did not put up one credible idea, not one positive idea, of how we can tackle this problem in Europe, except the usual diatribe that comes from him. He and his leader, Mr Le Pen, want to come to Ireland in connection with the Treaty. I can tell you something for certain: those sorts of extreme ideas would not and will not be tolerated in my country, thank you very much. So please do come, and we can be sure that the Treaty will be passed when they hear the sort of continental Europe that you want to develop, and your kind of ideas. It has been shown that attitudes that made workers receptive... (Interruption from Mr Gollnisch) We know what you stand for, Mr Gollnisch, and we have heard you so many times, you and your leader. It has been shown that attitudes that made workers receptive to right-wing populism include prejudice against immigrants, nationalism, authoritarianism, social dominance and political weakness, with prejudice against immigrants emerging as the most important factor among these. In countries where appropriate reporting facilities are in place, the most reported reason for discrimination is often region. If we address the elimination of such prejudice and discrimination, we will have taken a significant step forward in combating extremism. Therefore, I call on all Members to encourage debate and the exchange of views on issues of social inequality, origin, race, religion and the impact of social and economic changes locally, nationally and at all European levels, and not to use emotive language, calling people barbarians. To this end, I welcome the fact that, as part of the work for the European Year of Intercultural Dialogue, the European Parliament has invited Pope Benedict, the President of the African Union, the Dalai Lama, the Secretary-General of the United Nations, the Chief Rabbi of the United Kingdom and the Grand Mufti of Damascus to address the European Parliament during the year 2008. I welcome those sorts of initiatives. (NL) With all due respect, Mr President, I should be glad to hear from you why it is that members of your own group and people who manifestly represent a line of thinking closer to your own are given much more extra speaking time and are not so readily cut off, whereas people you clearly do not agree with are cut short after only ten seconds. You are applying a double standard here, and it is not acceptable. First of all, it seems to me, Mr Dillen, that the President directs the debate according to his own criteria and not according to those of whoever is occupying seat 777. I have no explanation to give you. All speakers, including those who have been speaking among themselves, have been given more than their share of time. At any rate, I would like to ask all Members to address the Chair and the House and not to direct their comments at other fellow Members, in order to prevent disorderly interjections and interruptions. (SV) Mr President, we have all noticed that extremism is growing in the EU. I think we should ask ourselves why. Why are xenophobia and other extremist attitudes on the increase? I am convinced that exclusion and lack of participation in society are a breeding ground for extremism and xenophobia. The equal value of all human beings is a fundamental principle in a civilised society, so we must all help to combat xenophobic forces which discriminate against persons with a different ethnic background, sexual disposition or gender or with functional disabilities. These groups use violence and they use threats. In my home country we have even witnessed the murder of people who have defended human rights. We see the murder of young people with a different ethnic background, merely because of their background. These things should never be allowed to happen again. We who promote the equal value of all human beings must never allow ourselves to be silenced. But we know that is not enough. Xenophobic and extremist groups use young people in economic and social exclusion to create more fear, unrest and hatred against other groups. The fight against extremism must therefore be combined with building a just society based on solidarity. Mr President, the motion before us is another example of ignorance and hypocrisy. In it we read that, amongst other things, some political parties and movements, including those in power in a number of countries or represented at local, national or European level, have deliberately placed intolerance and violence based on race, ethnic origin or nationality at the heart of their agenda. We also read that this Parliament strongly condemns all racist and hate attacks and calls on all authorities to do everything in their power to punish those responsible. In the Chamber in which we adopt such resolutions, one of our colleagues used abusive and offensive language of mendacious propaganda - the very kind that is often used by extremists, the very kind that is based on slurs and qualifies as a hate attack. He implied that I could repeat Dachau. Well, let me enlighten him: one, Dachau was a German death camp; two, Dachau is in Germany, and I am not German. He even claimed that, after a four-day visit to Poland, he knew my country better than I did, and that I am not a part of Poland - but that Dachau apparently is. This kind of hate speech is too often cited, reoccurs too often and emanates from too many politicians. The same politicians want to teach us all about democracy, while they themselves have little respect for it and little respect for equal treatment under the law. It seems that in Europe today - just as George Orwell wrote years ago - some pigs are more equal than others. Some can hide under the privilege of immunity, some can even avoid justice and even European arrest warrants. Communist criminals are somehow better treated than ordinary citizens, and while we speak in here against extremist groups, some German politicians openly support historically revisionist political movements. My dear colleagues, the Europe of our resolutions is very different from the Europe of our reality. (CS) Ladies and gentlemen, we have been yet again essentially consoling ourselves with the fact that the rise of extremism reflects a deteriorating economic situation and unemployment. I am afraid that such an assessment is no longer valid. The economies of many EU Member States have been growing, unemployment has been falling, but extremism has not been waning. On the contrary, the number of crimes based on race has been growing; national guards with an nationalistic ethos are being set up; SS veterans are marching across some EU Member States; and politicians who refer to the Jewish and Roma people as the 'ulcers' of society are being glorified. Politics and the army are being infiltrated by neo-Nazis and racists. The Prime Minister of the Czech Republic, my native country, has made neo-Nazi rhetoric part of his vocabulary. Last but not least, the EU has become a destination of migration for poorer people and no one seems to know how to deal with it, which also plays a certain role. Ladies and gentlemen, no resolution, no words can undo the swastika recently incised on the hip of a 17-year-old girl in Mittweida, Germany. In the daylight, ignored by indifferent bystanders, neo-Nazis in German Saxony incised it on her body because she stood up for a little Russian girl. I firmly believe that extremism can be prevented solely by citizens' everyday acts, publicly declared opposition by the political elite, open and comprehensive interpretation in particular of 20th century history, and most of all the police and courts, which must not close their eyes to racists, xenophobes and neo-Nazis, but act without delay to punish such behaviour. (HU) Thank you, Mr President. I speak now as one of the authors of written statement No 93. The statement, which I tabled jointly with my fellow Members Mr Tabajdi, Mr Szent-Iványi, Mr Vigenin and Mr Amezaga, condemns the operations of paramilitary extremist groups within the Union, which are one of the most obvious forms of extremism. In my experience, although many people feel a moral and political obligation to stop such extremist ideas from gaining ground, many stop short of specifically condemning it in a written statement or in another way. There are many reasons for this. One of them, for example, is that when we try to publicise these ideas, the list is never complete and never accurate. This deters many people from supporting it. However, one thing we must know is that the list will never be complete, and the concepts and definitions will never be accurate. For this very reason, we must instead grab extremism and extremist ideas by the roots. Today in this House is a day of celebration, but the Charter of Fundamental Rights has not come to be signed in untroubled circumstances. This Charter summarises in 50 paragraphs all the values and rights that we respect and want to protect in the Union. This Charter is the charter of anti-discrimination, the charter of the freedoms of expression, religion and assembly, the charter of equality and the charter of protection for individuals, data, young people and the elderly. We cannot pick and choose from it at will, put some people before others or use it for our short-term internal policy objectives. Everyone must be respected and protected equally, because this guarantees human dignity, and we, as members of the Parliament, have sworn to do that. Opponents to the sum total of the ideas and rights formulated here are what we call extremists, irrespective of the age, sex, religion, or nationality of the person concerned. In this spirit, I would like to ask my fellow Members to support written statement number 93. Thank you. (FR) Mr President, racist activity and racist crimes are on the increase in Europe. Roma, migrants and all those who are 'different' still face discrimination in many guises in employment, education and housing. We cannot repeat often enough that what we want is a European Union rooted in the humanist values of tolerance and the protection of fundamental rights. So the framework decision - adopted by a substantial majority in this House on 29 November - on combating certain forms of racism and xenophobia by means of criminal law is very necessary indeed. It will enable us to take the same measures against racist ideas and hate speech throughout the European Union. Extremist parties exploit people's fears of the other and of foreigners, so that they can propose an easy answer to globalisation. But those who hail the imposition of national preferences as a panacea are irresponsible. The real answer to the challenges of globalisation lies in grasping the full extent of today's human challenges. And we should not fear to state, loud and clear, that to respond by turning inward on ourselves is to court disaster. Mr President, we are seeing in Europe a constant increase in extremist, nationalist and populist movements that endanger our democratic system. In an ideal world, democracy is government of the people by the people and for the people. In fact, democracy is still the 'least bad' political system if it has proper checks and balances. However, the paradox of democracy is that it contains the possibility of its own death, in allowing the expression of populist and extremist opinions which erode the democratic system itself. In many European countries, there are parties that have succeeded in positioning themselves at the heart of political life with populist and demagogic discourses. European history has shown how extremist parties, dressed in democratic clothes and using populist and nationalist propaganda, have often led democracy to dictatorships. The best way to fight intolerance is to stand firm, to defend our democratic values and institutions, to defend individual rights, justice, equal opportunity and diversity, but also to sanction any discourse instigating hatred, segregation or discrimination. As Robert Kennedy said, 'what is dangerous about extremists is not that they are extreme, but that they are intolerant. The evil is not what they say about their cause, but what they say about their opponents.' Healthy democracies need active citizens. Democracy can only function if citizens are conscious and exert their civic rights and duties. We need to reinvent citizenship. We need new ways to learn democracy. We need to ensure that our education systems promote the development of an active, critical and engaged citizenship. In a global world, we imperatively need a citizenship that celebrates diversity and promotes understanding and tolerance. (PL) Mr President, I do no know whether political extremism is on the increase or not. I know that it must be opposed and condemned, both for its ideology and for its methods. However, the Charter of Fundamental Rights, which we welcomed today with such great ceremony, is not the answer to the problem but can itself create new problems. Article 21 of the Charter prohibits discrimination on the ground of political or any other opinion - I repeat, any other opinion - which thus includes extreme opinions such as those expressed recently on German public television by the leader of the NPD calling for changes to the border with Poland. Platitudes tend to rebound painfully on those who mouth them. I would therefore ask the supporters of the Charter of Fundamental Rights how they intend to fight political extremism when they are defending it at the same time. (EL) Mr President, it would be an omission on my part if I did not begin by expressing my concern at the general use made of the term 'extremism' without any definition, and without specific condemnation of extremist acts, in other words any extreme form of unlawful use of violence. It would also be a mistake not to mention the attempts to 'awaken' citizens to the dangers of radicalisation, and the simultaneous creation of flexible categories for possible criminals. I would like to remind you that in modern history, during periods when freedoms and rights were curbed in the name of security, policing and strict control, and when persecution based on stereotypes was allowed to gain ground, ideological bigotry, racism and xenophobia intensified and unspeakable crimes were committed. Similar lapses today could lead to the banning of political parties and trade unions, which will be a real blow to democracy, the rule of law and civil liberties. We must therefore ensure that democracy does not become merely a smokescreen for the adoption of punitive measures; at the same time, we must concentrate our efforts on mitigating the real causes of violent extremist acts, which utterly debase human dignity, since by definition they overstep the limits of freedom of expression. It is our duty to take up the battle against poverty, unemployment, deprivation, the exploitation of workers and social marginalisation, and to ensure that future generations, thanks to proper teaching and education, stay away from aggressively nationalist and fascist organisations which promote extremist acts as a means of expression. (SK) Thank you, Mr President, ladies and gentlemen. In my view, it is essential to adopt a joint resolution on combating extremism, which has become more and more evident recently. There is a certain symbolism in the fact that this debate is taking place on the day when the Presidents of the European Parliament, the Commission and the European Council confirmed with their signatures the EU's legal commitment to the Charter of Fundamental Rights. We cannot allow individuals or extremist organisations to attack citizens, whose rights must be guaranteed in a civilised society. The history of Europe has shown the forms that extremism, militant nationalism and ideological radicalism can take. It is our duty to consistently monitor European territory for any activities by these groups or individuals and take vigorous action against it. I must add with regret that extremism seems to be on the rise primarily among young people in Europe. This reflects a certain failure on the part of the politicians. It is important to remember that many politicians, due to a lack of positive and professional assets, seek to promote their own political background and capital by provoking the least experienced and poorly informed sections of the public. That is why adopting stricter legislation and more vigorous measures while there is still time is an issue and a responsibility we must all assume. (ES) Mr President, Commissioner, at this stage of the debate most of what can be said on this subject has already been said. However, I would like to refer to the Commissioner's exhortation about the need to think about the underlying roots of extremism. It seems to me that the problem of extremism is not that there is a series of groups who carry out violent attacks. It is a problem, but it has to be tackled through the law and individuals must be prosecuted, etc. The problem arises when the violence and the intentions behind it are repeated and have a chance to affect a broad sector of the population or certain sectors of the population. From a social and political point of view, it is when violence causes concern that the problem arises. As for how to prevent it, I think there are three essential factors. First, the Commissioner mentioned a knowledge of history - I myself believe that it is very important to know about tragedies, about successes and ultimately about ourselves as humans. However, I think we have to be careful not to use history as a weapon against others with a view to short-term political gain - something which is happening now in some countries, including my own country, Spain, I have to say. Secondly, I think there are two other fundamental aspects which at the moment are much underrated. Firstly, education. We have lost, and are still losing, or at least eroding, values such as work, discipline, self-reliance, that is to say all those values which go towards creating a good citizen when these people reach adulthood. Finally, in the context of the European Union, the important thing is not to break up that environment in which we Europeans can challenge together the networks created by globalisation. What we have now, and what we have had at other times in the course of 20th century European history, is a great deal of uncertainty, a certain desperation, a certain aimlessness, and what we need to do is provide hope, a forward-looking spirit and strong leadership so that everyone feels a part of the European Union. (PL) Mr President, the continent of Europe, the countries of the European Union, are now a territory in which we encounter cases of xenophobia, extreme nationalism, anti-Semitism, racism and islamophobia. What is missing in Europe today is the liberal-democratic consensus of the period following the Second World War. Europe's politicians lack the real political will to tackle these problems. Dealing with the outbreaks of racism, Islamophobia, anti-Semitism and xenophobia is a common duty that falls upon European education, media, churches, sports activists and, above all, politicians. We often find ourselves defenceless against such extreme forms of political activity. Worse still, many politicians and political parties take advantage of extremist or populist movements for their own purposes. I do not want to use this debate to score political points in the European Parliament, but I could mention many such examples. What matters now is to achieve a common policy at the level of the European Union - in the field of education, above all, as well as in sport, culture and politics - to combat extremism. Mr President, eight years ago Jörg Haider's immigrant-hating party entered into a coalition government in Austria. EU governments did not have a clue what to do. As a result of that disarray, Article 7 of the Treaty on European Union was inserted. It has never been used and it is clear that Member States have a cultural problem in criticising each other. But we have to have a more proactive policy of peer review when Member States call each other to account, because it is an EU concern if extremists and intolerant parties enter into government in one EU country. The criminal law has a solid role in punishing incitement to hatred, alongside provisions outlawing discrimination. The law can help change attitudes, as well as behaviour. Society signals the limits of acceptability in part by what it criminalises or bans. That is why I was so disappointed that the Commission apparently found the Italian Government deportation action against Romanians, largely Roma, and the accompanying rhetoric, compliant with EU free movement and anti-racism laws. Personally, I did not. But the law can and should only go so far. For instance, the question of whether to criminalise Holocaust denial is a controversial one in Europe. The recently agreed new EU law banning incitement to racial and religious hatred was right, in my view, to leave that option to individual countries. My own country's tradition and preference is to leave people like David Irving to condemn themselves by the absurdity of their unhistorical views and to be contradicted by vigorous debate. Those of us in the mainstream parties do not have to be intimidated by the thugs and bully boys of the extremist right, left or fundamentalists of any kind. Liberal democrats - and I use that term with a small 'l' - of all democratic parties are just as confident and passionate about our commitment to a generous, inclusive, European vision as they are to their mean intolerance. Let us constantly express that. (PL) Mr President, extremism is a phenomenon supported by politicians who exploit racism, nationalism and xenophobia for their own ends. Extremism often uses terrorism in pursuit of its aims. Extremism does not unite people and social groups: it divides them. It is the enemy of a democratic society. It is opposed to the basic values of the European Union, a community of people who reject hatred and the war caused by fascists and nationalists that cost tens of millions of lives in Europe in the 20th century. The largest terrorist organisation, al-Qaeda, founded on extremism and the use of terrorism for political ends, is now capable of destroying weak democracies and achieving political power. I support the resolution, which seeks to mobilise the European institutions for further action against terrorism and extremism. (EL) Mr President, the rise of far-right racist groups and organisations in Europe is no accident. It is the result of the European Union's anti-popular, reactionary, imperialist policy. This policy, whose only guiding principle is the maximisation of profitability for the European monopolies, through the accumulation of vast wealth on the basis of savage exploitation of the working class, is spreading poverty, inequality and marginalisation, and is drastically eroding the position of the working-class family and aggravating working-class problems. Under these conditions - in marginalised sections of society or in social strata with a low level of political awareness and experience - far-right and fascist ideas, which are promoted under a populist, demagogic guise, are able to take root. Today there is more fertile ground for the creation and growth of such groups because of anti-communist hysteria, the attempt to rewrite history, the shameless attempt to wipe out the huge contribution of the USSR to the victory over fascism, and to equate communism with Nazism and fascism. We see this, for example, in the recognition and legitimacy granted by the governments of the Baltic countries to the local fascist groups, who were collaborators with the SS and the Nazis who were based in those countries during the Second World War. Fascism, racism and xenophobia are faces of the same coin. Born and bred of the capitalist system, which creates, maintains and nurtures these fascist groups. For precisely this reason we regard as hypocritical the alleged concerns over the rise of far-right and paramilitary organisations in Europe, and we reject every attempt to equate the class struggle, the struggles of the workers' and popular movement and communist ideology with extremist ideologies, as an unacceptable attempt to instil fear in people. (BG) Mr Chairman, Colleagues, This day is a testimony that the European Parliament guarantees the rights not only of the majority but also of those who have different opinion. Because if the nationalists in this hall achieved their goals, none of us would have the right to a different opinion as they had the oppoprtunity to express it today. We shall prevail over intolerance and extremism with arguments rather than emotions, with facts rather than noise. Unfortunately, however when we talk about facts, there is nobody to hear them. This is a regrettable fact. Still, I hope that our supporters, our voters in the Member States will hear very carefully what was pointed out also by Commissioner Fratini. In the first place, intolerance and extremism come from the oblivion of the past. We must remember the past and the two severe dictatorships that Europe suffered. Therefore I appeal to the Commission and to all of us: let us remember the history of Europe and let give more opportunities for the progammes of the European Commision to finance projects that preserve our memory. Secondly, we must remember the involvement of citizens in the political process. Colleagues, we are partly to blame for nationalism and xenophobia in Europe. Many of us started speaking as bureaucrats rather than politicians. They have forgotten the language that the voters can hear and speak the language of institutions instead. Let this make us strong enough in this debate to overcome the problem which exists especially in the new Member States. Let us name problems and tackle them directly, when they exist. For more often than not political parties win in elections by promising one thing and doing other things afterwards and then they are surprised by the existence of extremism and discontented people. It is our common responsibility of all of us in the European Parliament to also oppose the rising extremism and intolerance to the east of the European Union, which is dangerous to all of us. Thank you. (HU) Mr President, it is not generally enough to fight extremism. Everyone must act against the nationalist and extremist tendencies emerging in their own country. First of all, everyone should condemn extremist nationalists and distance themselves from them in their own country. This is an extremely important requirement, and this current debate also demonstrates that extremism must be fought using direct and indirect instruments at the same time. Direct instruments must be used to punish speech that incites to hatred. There are some who refer to freedom of expression and say that this cannot be condemned using the instruments of criminal law, but I feel that we have not yet struck the right balance. Democratic forces must give an example, especially to the right wing, and the democratic right wing has great responsibility for distancing itself from the extreme right-wing phenomena that are running riot in Europe. At the same time, some of my fellow Members have spoken about the fact that we must also react using indirect instruments, as the reason for very many extremist incidents is social uncertainty or uncertainty of national identity. This current debate is very important, and I feel that Commissioner Frattini, the Agency for Fundamental Rights and the European Parliament must monitor all extremist incidents closely. Thank you for your attention. (NL) Mr President, there are extremists on all sides, but in recent years they have been dictating the tone and content of the political agenda. Democratic mainstream parties are far too slow to distance themselves from extremists because they fear losing votes, and the result is a creeping political acceptance of extremism and intolerance. And there is something else. On top of racism and nationalism there is also extremism against women and homosexuals, for example - we have not dealt with this yet today - and this is often based on religious beliefs. I am horrified when I see parties in government, with power to rule, or parties represented in parliament - in my own country too - encouraging discrimination against women, gays and people of other faiths. Lastly, a word or two that may be controversial, Mr President. With all due respect to what Mr Ryan has said, I myself am not greatly in favour of inviting leaders of the major world faiths here to address our plenary unless they are prepared to abjure their discriminatory views on women and gays. (PL) Mr President, one way to combat extremism and reduce the electorate of extremist parties is to listen more attentively to citizens on matters of importance to them and to analyse the underlying causes of extremism. If the citizens of Europe vote for extremist parties, it means, among other things, that a large section of society does not feel that the people in power are listening. I am not defending extremism, but it does not come from nowhere. In France Nicholas Sarkozy has understood this. By approaching issues such as immigration and the accession of Turkey honestly and courageously, he has succeeded in weakening the extremist parties. I would encourage the European Commission to follow the French example. Mr President, a mayor rails against immigrants claiming that immigration is a source of insecurity; another mayor declares his city free of foreigners; a head of state speaks about the Parliament as a gang of outlaws, instigates the people to mutiny against the legislators and glorifies a democracy without opposition and without parties. A group of parliamentarians today, in a hooligan manner, called for direct so-called 'popular democracy' which would replace elections with referendums. An outstanding public leader expresses support for the violent groups which stormed the parliament building of a democratic state and asked for the revision of the peace treaties. A number of journalists express daily - even if sometimes in politically correct vocabulary - xenophobic, anti-parliamentarian, anti-pluralistic, anti-Roma, anti-Islamic, exclusivist, intolerant, discriminatory and chauvinistic views. A minister asked the European Commission to make money available in order to concentrate a certain undesirable ethnic community in the poorest countries of the Union. All these are facts, taking place in the European Union and committed by persons reputed to be democratic members of the mainstream democratic parties. Here, today, we condemn the extremist parties and their organisation. This is just because they are perpetrators of intolerance and intolerance should not be tolerated. But what about the facilitators? The populists disguised as democrats who, by weakening the democratic institutions and relativising the democratic principle, create the most favourable environment for extremists? If we keep speaking only about symptoms and perpetrators, remaining silent or passive when it is about the causes and facilitators, we are going to jeopardise our values. This must not happen. (SV) Mr President, let me begin by thanking all parties for the resolution. Today no EU country is free of right-wing extremism, not even my own country, Sweden. In the last local elections in 2006 Sverigedemokraterna (the Sweden Democrats) won seats in two thirds of municipalities. It might be suspected that their next targets are the elections to the European Parliament in 2009 and the Swedish parliamentary elections in 2010. We Swedish parliamentarians need help in making that more difficult, precisely as others need help in their countries in stopping the spread of right-wing extremism, which is on the increase throughout Europe. Europe needs democratic parties whose programmes reach out to all, not just a few. In the 2006 elections the slogan of the Swedish Social Democrats was 'Everyone is included', and it becomes even more relevant in this debate, since the parties and groups we are discussing have programmes which do not respect the EU's fundamental values and the equal value of all human beings. For me, as a member of the Committee on Civil Liberties, Justice and Home Affairs, the approach to questions of asylum and refugee policy is absolutely crucial. The right-wing extremist parties oppose both a more open Europe and the development of the EU. Instead they advocate nations with closed borders. It is a threat which I observe in Sweden and, along with all of you, throughout the EU. I would like to make one more comment on the resolution. The propaganda which extremist groups spread among children and young people takes the form of white power music. The media and communications are the tool used, and it circumvents school, the family, further education and our political values. It is important that we, as elected representatives, now take charge of the debate. We must do that as of now and continue up to the European Parliament elections in 2009. Let us applaud the resolution. (Applause) (EL) Mr President, a threat hangs over democracy in Europe, and I doubt whether we have all understood its significance. This threat is not the spread of far-right ideas, but the transition from the ideas to the methods of the far right. To the acceptance, in other words, of brute force, as seen in the activity of the paramilitary far-right organisations. A major distinction therefore needs to be made: on the one hand, we are combating ideas with which we do not agree. The ideas that promote nationalism in Europe, and racism, xenophobia, oppression of women, oppression of minorities. We are combating these ideas with our own ideas and with our effort to fight the causes, the political causes, which are to be found mainly in the problem of diversity - in the fact, that is, that European citizens do not accept diversity, do not accept the policy that supports it, and do not accept Europe itself. On the other hand, however, we are fighting a different battle, even by criminal means, against the spread of those ideas, through action which leads to violence. From this point of view, I think this very well-balanced joint resolution from all the democratic parties in Parliament is another great political moment for our Parliament - especially after what happened today - and I am very proud that this resolution originated from our own group, the Socialist Group. (PT) On 6 September some twenty graves in the Jewish cemetery in Lisbon were desecrated and swastikas painted on the headstones. The two perpetrators were arrested. They are members of the Frente Nacional or National Front, an extreme right-wing Portuguese skinhead organisation which openly advocates racial war and violent action to secure white supremacy. This case and others, notably the wave of anti-Muslim hysteria in various European countries and the racist violence recently unleashed against the Roma community in Italy, show that xenophobia and violent racism are with us and we cannot afford the luxury of minimising them. In the Portuguese case, the authorities were initially tempted to play the case down and declare that anti-Semitism was contrary to the supposedly tolerant nature of Portuguese society. But the presence of the Ministers for Justice and Internal Administration at the Jewish cemetery for the ceremonial purification of the graves and the publicity this demonstration of solidarity received in the Portuguese media are a lesson for other cases in Portugal and elsewhere. Extremism in Europe can only be fought effectively if the political representatives and the media assume their responsibilities by giving visibility to crimes of this type and identifying them as direct and base attacks on the very essence of democracy, of Europe and of Humanity. (FR) Mr President, ladies and gentlemen, the rise of extremism in Europe is certainly very worrying and all the European institutions need to mobilise to stem the growth of these extreme right-wing movements that are becoming ever more threatening as they not only promote suspect values but increasingly attack human rights on the basis of their racist ideology. This dangerous trend in the European Union is unacceptable! As I see it, the Commission needs to respond on two fronts, reflecting the ideas expressed in the written statement and in the PSE resolution on the subject: it needs to act positively along with the Member States to identify appropriate political and legal means, on the one hand, of condemning human rights violations and, on the other, of preventing extremism, particularly among young people, by raising awareness of the Union's fundamental values. It is also essential to ensure that no European fund can be used by an institution or organisation that promotes values, or makes statements, inciting people to xenophobic, racist violence. I would remind you here of the case of Radio Maria in Poland, which, although notorious for promoting anti-human-rights views, applied for European grant aid. I would therefore take this opportunity, in the presence of the Commission representative, to urge once again that no European funding should go to media which serve as a platform for racist ideas, with a widespread and potentially very dangerous impact on the public. Member of the Commission. - (IT) Mr President, ladies and gentlemen, I consider that today's debate has been of extraordinary interest - of extraordinary interest and also of a high political level - and I should therefore like to thank all those who have spoken, including those who have said things with which I do not and cannot agree. Some speakers have questioned whether it is necessary or important to raise such an issue in this House; I believe, however, that it has been very important. An issue which is certainly a highly political issue has been raised: striking a balance between the right freely to express our thought, which is one of the rights that the Charter of Fundamental Rights recognises, and other fundamental rights such as the dignity of the human person, equality and non-discrimination. May I say that those who have raised this issue, taking the view that freedom of thought makes it possible to cause offence and to stir up values running counter to the fundamental rights of the person, have distorted what freedom of thought actually means. I always speak as I find, even when my opinions run counter to those who spoke before me. Someone said: 'if, in a referendum, citizens come out against the Charter of Fundamental Rights, that will be an expression of freedom'. I do not agree, because calling for a referendum against the Charter of Fundamental Rights would be to call for a referendum against citizens, since those citizens are clearly the holders and protagonists of the fundamental rights that we must now safeguard. It is not because that principle has to be refuted, but because those who defend fundamental rights are not extremists, while those who violate and refute them, those who wish to affirm the right to incite a mob or a group of violent people to destroy Jewish graves are extremists. That is not freedom of expression, that is violence that has to be eradicated through policies and has to be punished by the instruments of the law. These are, in my view, the two measures for which Europe must steadfastly press. We must not play it down. We must not think that a single event can be underestimated because it is a single event, if that single event is a symptom of racism and intolerance, of a profound scorn for human values, we must also be worried by a single event, by a single act of violence! Many of you have raised another, very important, issue: can the propagation of a racist message by political forces be tolerated in the name of the free expression of political thought? Because they are elected by citizens, I believe that those in politics have a special responsibility and must not incite the mob against other citizens or other people: a sense of personal accountability. In my view, it is difficult, and I say this frankly, to use the instruments of the law, the police or the secret services to undertake a far-reaching investigation of this or that party. However, when this or that party publicly says that its intention is to restore racial supremacy, that is not free expression of thought, but an attack on a deep-seated foundation of Europe. It is for those reasons that repressive action is justified, and there can be no talk of censure or of violation of the freedom of expression. I will defend the right of those who do not agree with me to say what they wish to say, but I cannot defend the right of those who do not agree with me to incite the mob or other people to attack and to wound and kill. In no way is that free expression of thought! That is why today's issue is a key issue and I shall put forward similar arguments when we debate the appalling form of extremism represented by terrorism, because we can surely not draw a line between the message of racial hatred and the message of those who consider that killing people in terrorist attacks is a possible answer to society's problems. Both are issues which - in my view, through education and prevention, by fostering tolerance, and by using the instruments of law and the instruments of enforcement - must be tackled at European level. We can only be satisfied when we are sure that there is no room for racists, bigots and terrorists in Europe. I have received five motions for resolutions pursuant to Rule 103(2) of the Rules of Procedure. The vote will take place on Thursday, 13 December 2007. in writing. - I will vote for this resolution with a degree of reluctance. It covers an important subject which I have worked on in this House since I was first elected in 1984, when I had the honour to chair Parliament's Committee of Inquiry into the Growth of Racism and Fascism in Europe. My concern is that this resolution is so weak that individuals who back in the 1980s were members of neo-Fascist parties like the Movimento Sociale Italiano are able to sign and vote for the resolution today. On that basis, it must inevitably be flawed. in writing. - (HU) The extremist movements that are growing stronger throughout Europe give us cause for grave concern, since their political activities are based on inciting hatred against the most vulnerable groups in society, and they preach intolerance and social exclusion. Such ideas are incompatible with European values, human dignity, equality of rights and the fundamental freedoms in the founding treaties of the Union, or the basic principles formulated in the Charter of Fundamental Rights, proclaimed this very day. Such movements and the views they express are capable of generating fear among minorities and among the law-abiding, democratic majority of citizens. Because of the increased media interest by extremist groups, the false generalisations and distorted half-truths that are expressed more widely than before are not only unacceptable but extremely dangerous, since they strengthen incidents of prejudice and negative discrimination and further impede the resolution of social problems. I would like to remind you separately of anti-gypsy incidents, which are also becoming increasingly frequent. There are more than ten million gypsies in Europe, and they are the largest and at the same time most vulnerable and most defenceless ethnic minority in Europe, and it is not that their situation has not improved in recent years, but in many areas it has definitely deteriorated. It is the joint responsibility of the European Union and civil organisations to find a solution to the problems of unemployment and abject poverty, and to put an end to the residential and educational segregation of gypsies. Resolving these problems is now the most urgent minority question for the European Union. in writing. - (HU) The extremist parties gaining seats in many Member States of the Union and temporarily even in the EP cannot become acceptable in European politics. Their suppression is a matter for all of society in the European Community, even if we know that everyday racism and xenophobia are concealed by citizens who otherwise demand democracy and human rights. Young people, for whom not only the Holocaust but also the fall of the Berlin Wall are history, are particularly at risk. Europe without borders overestimates the consciousness of belonging to a nation, and it is easy to instil even wild ideas. So far, European legislation has followed national measures: it does not go beyond it and it does not point the way. However, the problem requires not only political or legal responses, so action should not just appear in our objectives, but also in responses from civil organisations and churches that profess European values and play a role in public life. For example, Pope John Paul II spoke out against racism and xenophobia many times, and he saw the task of religion as serving truth, peace among men, forgiveness, life and love: in other words, all the values that these radical groups do not represent, or only in an extreme sense. I would like to ask the EP President and the Members of the Commission, during the dialogue to be held with the churches, to ask the churches to act against extremists and to withdraw any gestures of support. in writing. - (HU) Mr President, ladies and gentlemen, extremist ideas and organisations have become alarming phenomena in our everyday lives, and we can see this everywhere, almost without exception. The basic concept for the fathers of European integration was freedom of thought and opinion. Today, these are our fundamental values. True democracy also guarantees freedom of expression, which cannot, however, lead to any disturbance or cast doubt on peace, life and existence; indeed, we have got there today. Nor can we allow the ideas that previously incited the Holocaust and hatred among nations and peoples to have a forum and organisations. In many places the extreme right wing looks for and finds one of the sources for its solutions to the social problems before us in segregation and in inciting hatred, rather than in social reconciliation and integration. The European Union, as the true repository of human rights and humanitarian protection, must do everything to make these ideas and organisations withdraw, and even to make them disappear from our everyday lives if their aggression, which disturbs the healthy life of society, so demands. I also recommend that the Union have more room for information in its communication activities. Unfortunately, significant layers of the population, primarily though ignorance, are susceptible to extremist, populist manifestations. It is primarily the young generation that is at risk, since they have not had the means to obtain the relevant historical experience of finding the right direction. Our task is to help them with that. If we give up, we will shake the foundations of our future. in writing. - (RO) The European Union must fight against any type of extremism, since this activity is contrary to the principles of freedom, democracy and respect of human rights lying at the basis of the Union. For this reason, at European level, anti-extremist and anti-terrorist actions should not affect the fundamental rights of citizens. Extremist movements of paramilitary groups, ultra-nationalism, xenophobia, calls to violence and local ethnic and religious conflicts threaten the stability of the European Union, characterized by a rich cultural and traditional diversity of its Member States. The latter must join efforts to fight extremist actions and identify the instigators and organizers of such actions. The European Agency for Fundamental Rights will also play an important role in preventing racism and xenophobia, ensuring a climate of security on the territory of the Union. Dialogue, education and public information on themes related to promoting tolerance and combating racism are important elements that contribute to the dissemination of the principles of freedom and democracy. Member States should also cooperate and make efforts to integrate marginalized social and ethno-cultural categories, so that fight against discrimination and incitation to violence would ensure an ethnic and political harmony inside the European Union.

Title: My wife was forced to resign from her company after filing for partial unemployment when her hours were cut. This is in Texas. Question:I apologize for the terrible title and formatting issues. I'm on mobile and I don't really post on reddit that much. Mostly a lurker. So, over the last month and a half my wife's hours dropped from a steady 40 to around 20-25. This normally wouldn't have been a problem, but our savings have been wiped out trying to visit my terminally ill mother. Last week my wife was supposed work a full week. Her boss called twice last week saying there wasn't enough work so she couldn't come in. She was also told she would only work half a day that Friday. I decided to do some digging about unemployment and found out you can apply for partial unemployment. My wife agreed to file to help out our finances. This was on Thursday last week. On Friday my wife's jeep broke down and would not run. I was already at work and couldn't leave to bring her, so her boss came and got her. The jeep wasn't a huge deal to me because our schedules lined up perfectly to share my car. Sometime that day, my wife told her boss that she filed for partial unemployment. Her boss lost it after that. She told my wife she had to resign and slammed a piece of paper and a pen on the table. My wife was so upset she, unfortunately filled out the resignation how her former boss wanted her to. She made her write that she was resigning due to transportation issues, which is obviously not true because we have a perfectly working vehicle. Do we have any rights or legal recourse here? This seems like retaliation for her filing for partial unemployment. Any help or advice would be much appreciated. Thank you. Answer #1: Not really, no. She resigned. They could have fired her, being an at will state, had she refused. She needs to move on.

Approval of Minutes of previous sitting: see Minutes

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 6-K Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of 1934 For the month of March, 2015 Commission File Number 1-15106 PETRÓLEO BRASILEIRO S.A. - PETROBRAS (Exact name of registrant as specified in its charter) Brazilian Petroleum Corporation - PETROBRAS (Translation of Registrant's name into English) Avenida República do Chile, 65 20031-912 - Rio de Janeiro, RJ Federative Republic of Brazil (Address of principal executive office) 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 X Form 40-F 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 NoX Board Member Elected by Minority Shareholders Rio de Janeiro, March 30, 2015 – Petróleo Brasileiro S.A. – Petrobras informs that it has received a correspondence from Mr. Mauro Gentile Rodrigues da Cunha, member of the Board of Directors elected by the minority shareholders, informing that he does not intend to run for a new term. www.petrobras.com.br/ir Contacts: PETRÓLEO BRASILEIRO S.A. – PETROBRAS | Investor Relations Department I e-mail: [email protected] Av. República do Chile, 65 – 10th floor, 1002 – B – 20031-912 – Rio de Janeiro, RJ | Phone: 55 (21) 3224-1510 / 3224-9947 FORWARD-LOOKING STATEMENTS This release includes forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, that are subject to risks and uncertainties. The forward-looking statements, which address the Company’s expected business and financial performance, among other matters, contain words such as “believe,” “expect,” “estimate,” “anticipate,” “optimistic,” “intend,” “plan,” “aim,” “will,” “may,” “should,” “could,” “would,” “likely,” and similar expressions. Readers are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made. There is no assurance that the expected events, trends or results will actually occur. We undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information or future events or for any other reason. The Company’s actual results could differ materially from those expressed or forecast in any forward-looking statements as a result of a variety of assumptions and factors. These factors include, but are not limited to, the following: (i) failure to comply with laws or regulations, including fraudulent activity, corruption, and bribery; (ii) the outcome of ongoing corruption investigations and any new facts or information that may arise in relation to the “Lava Jato Operation”; (iii) the effectiveness of the Company’s risk management policies and procedures, including operational risk; and (iv) litigation, such as class actions or proceedings brought by governmental and regulatory agencies. A description of other factors can be found in the Company’s Annual Report on Form 20-F for the year ended December 31, 2013, and the Company’s other filings with the U.S. Securities and Exchange Commission. 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. Date:March 30, 2015 PETRÓLEO BRASILEIRO S.APETROBRAS By: /

ITEMID: 001-101813 LANGUAGEISOCODE: ENG RESPONDENT: UKR BRANCH: CHAMBER DATE: 2010 DOCNAME: CASE OF LYUBOV EFIMENKO v. UKRAINE IMPORTANCE: 3 CONCLUSION: Preliminary objections dismissed (six month period, ratione temporis);Violation of Art. 2;Remainder inadmissible;Non-pecuniary damage - award JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva TEXT: 4. The applicant was born in 1941 and lives in Bakhchysaray (Бахчисарай; Bağçasaray), in the Crimea. The applicant is the mother of E., who died after having received serious bodily injury in private premises. 5. During the night of 5-6 June 1993 a group of several persons were present inside the director's room of the “Kardinal” bar (hereafter “the K. bar”) when E., who was in the room, received serious head injuries from which he fainted. He died in the early morning of 6 June 1993. E. also lost his golden jewellery as a result of an incident which occurred inside the room. Two other men, D. and S., were also in the director's room. 6. According to the applicant, the events had taken place in the presence of a number of identifiable witnesses and an officer of the local police department S-v. The witnesses included E.'s former girlfriend K-va, D.'s former fiancé K., and E.'s friends W. and G. 7. On 7 June 1993 the Bakhchysaray District Prosecutor (“the District Prosecutor”) transferred the file on the investigation into E.'s death to the Bakhchysaray Police Department of the Ministry of the Interior (“the Police Department”). It contained in particular twelve cigarette butts, two fragments of wallpaper with stains resembling blood, a bedcover, a tablecloth and a disassembled pneumatic rifle. It also stated that relevant photos were available from the forensic expert. 8. On the same date an expert from the Bakhchysaray Forensic Examination Department of the Ministry of Health found that E.'s death had occurred two or three hours after he had sustained the injuries, including concussion, bruises below both eyelids and on the chin, a broken nose, bruises and bleeding of the upper lip, numerous facial scratches on the right side of the forehead, subdural haematoma and brain contusion. He stated that E.'s death had resulted from multiple injuries (no less than seven blows to the right side of the forehead, the cheekbone, the bridge of the nose, the chin, the left cheek and the left parietal part of the head) and that he had suffered knees injuries and internal bleeding, apparently from a broken nose, which had caused him difficulties in respiration. 9. On 8 June 1993 the investigator of the Police Department initiated a criminal investigation into E.'s death. 10. On 30 June 1993 he instituted criminal proceedings into allegations of theft of jewellery from E. The two investigation files were joined under no. 76662 (hereafter “case no. 76662”). 11. In a resolution of 30 June 1993 the investigator decided that D. should be detained as a suspect in connection with the premeditated infliction of bodily injuries to E. He stated that the investigation had established that E. had been beaten in the director's room following a prior conspiracy between D. and S., and that D. had had personal motives (a hostile personal attitude to E.) to commit the crime. 12. On 30 July 1993 the investigator indicted D. and S. for inflicting bodily injuries leading to death, and issued a nationwide search warrant in respect of them as they absconded. Consequently, the investigation was suspended on 30 August 1993. 13. On 13 February 1997 the Russian General Prosecutor's Office informed its Ukrainian counterpart that S. had been arrested in Russia, but released a month later, the Ukrainian authorities having failed to ask his extradition in time. The nationwide search for S. was resumed. 14. On 2 March 2000 D. was arrested in Russia. He was extradited to Ukraine on 11 July 2000 where he was kept in detention. 15. On 19 July 2000 the senior investigator of the Police Department resumed the investigation into case no. 76662. He stated that D. had inflicted multiple injuries on E. with premeditation, which had led to his death. He ordered D.'s detention in view of the gravity of the offence. D.'s detention was subsequently extended until 2 September 2000. 16. On 22 July 2000 D. was indicted for inflicting serious bodily injuries on E. He contested his guilt, stating that he had seen that E. had been beaten, having a bruise under his eye. He also said that he had left the town and gone to Russia for seven years without informing his relatives. 17. On 26 July 2000 the investigator questioned K. (see paragraph 6 above) about the events of the evening of 5-6 June 1993. She did not know whether D. and S. were involved in the death of E. 18. On 27 July 2000 D. was released from custody as he was not deemed a danger to society. On the next day he signed an obligation not to abscond. 19. On 28 July 2000 the supervising prosecutor of the Crimea Prosecutor's Office requested to complete the investigation by 2 September 2000. He mentioned that the acts of which the two suspects were accused were not classified correctly under criminal law and that the facts of the case had not been established with sufficient precision. 20. In a decision of 4 August 2000 the Police Department terminated the criminal proceedings against D. owing to the lack of evidence. The decision referred to statements by W. (see paragraph 6 above) and those by D.W. stated, inter alia, that together with G. (see paragraph 6 above), had carried unconscious E. out of the bar. 21. The applicant was informed of this decision on 18 September 2000. 22. On 8 August 2000 the Police Department charged D. with failure to report a crime against E. He was heard and delivered his version of the events. The investigation was terminated on the same day in view of the statute of limitations. 23. On 14 August 2000 the preliminary investigation in respect of S. on suspicion of his involvement in inflicting serious bodily injuries on E. was suspended as his whereabouts were not known. 24. On 4 September 2000 the Crimea Prosecutor's Office informed the applicant that the residential restriction imposed on D. by recognisance not to abscond (see paragraph 18 above) was lawful as the offence against E. had been committed with negligence. However, it found that there was enough evidence to conclude that serious bodily injuries had been inflicted on her son which had led to his death. 25. On 5 September 2000 she was informed that the criminal proceedings in respect of D. had been terminated owing to the lack of evidence corroborating his involvement in a crime and to the statute of limitations in respect of his failure to report the crime. As to the proceedings against S., they were suspended as his whereabouts were not known. Similar information was provided to her next day by the Police Department. 26. On 2 November 2000 the supervising prosecutor from the General Prosecutor's Office quashed the resolution of 4 August 2000 (see paragraph 20 above) on the ground that it had not taken into account all the relevant evidence confirming the suspicion against D. that was available in the case file. A reference was also made to inconsistencies in the evidence received from certain witnesses. 27. On 5 November 2000 the same supervising prosecutor quashed the resolution of 14 August 2000 (see paragraph 23 above) and ordered to continue the investigation. The case was remitted to the Dzhankoy District Prosecutor. On 8 November 2000 the supervising prosecutor advised the investigators to newly interview the persons who had witnessed the incident and whose statements were inconsistent, to identify any other witnesses and to establish some factual details. 28. On 21 February 2001 the Bakhchysaray District Court (“the District Court”) quashed the resolution of 8 August 2000 (see paragraph 22 above), and re-opened the investigation into the suspicion of D.'s involvement in robbery as the period for calculating the statute of limitations should have begun to run from 3 March 2000, the day after his arrest in Russia. 29. From 4 December 2000 to 14 May 2001 the investigator was receiving information clarifying the events of the night of 5-6 June 1993. 30. On 20 May 2001 S. was extradited to Ukraine where he was subsequently detained on suspicion of being involved in inflicting serious injuries on E., leading to his death. 31. From 21 to 23 May 2001 the investigators questioned S. and some other witnesses who brought further clarifications into the incident in the bar K. Furthermore, they undertook a number of other procedural steps in order to complete the investigation. However, they could not question K-va who had resided in Turkey. On 23 May 2001 S. was released on a recognisance not to abscond. The resolution stated that it was V.B. who had inflicted serious lethal injuries on E. and that he had initially left his place of residence in 1993 as he was afraid of persecution by V.B. 32. On 1 June 2001 the investigator of the Police Department terminated the criminal proceedings against S. for the offence of inflicting serious bodily injuries due to the lack of evidence. S. was immediately charged with failure to report a crime committed by V.B. Being interviewed on the same day, he pleaded guilty. 33. On 20 July 2001 the criminal proceedings against D. into suspicion of his involvement in causing lethal injury to E. were terminated owing to the lack of evidence. On the same date, the criminal proceedings against S. on suspicion of his involvement in failure to report a crime were also terminated in view of an amnesty. Proceedings against V.B. for his involvement in inflicting bodily injuries on E. were also discontinued because V.B. died. Later on the same day, the investigator issued a separate procedural resolution terminating proceedings in case no. 76662. 34. On 14 September 2001 the Crimea Prosecutor's Office quashed the aforesaid resolutions finding them unlawful and remitted the case to the District Prosecutor's Office for additional investigation referring, in particular, to procedural deficiencies in the investigation and stating that there was no investigation into the circumstances of the robbery against E. 35. In October 2001 the applicant complained to the Crimea Prosecutor's Office about the failure of the authorities to investigate the circumstances of her son's death. On 6 October 2001 the Police Department refused to give her access to the criminal case file. 36. On 5 November 2001 the Deputy Prosecutor of the Crimea again quashed as unlawful the resolutions of 1 June and 20 July 2001 (see paragraphs 32 and 33 above). He instructed the District Prosecutor to undergo complementary investigation including forensic medical examination and additional hearing of certain witnesses, including the police officer S-v. On the same date he quashed resolution of 14 September 2001, stating that it did not comply with the law in failing to give instructions for further investigation and applying sanctions to those responsible for delays in investigating the case, including the District Prosecutor's Office, to which the case was nevertheless remitted for further investigation. 37. On 13 November 2001 the Crimea Prosecutor's Office informed the applicant that the investigation did not comply with the requirements of the national law as to the need to establish facts of the case fully, thoroughly and objectively. It also stated that the unlawful decisions had been quashed earlier and the case remitted with detailed instructions to the District Prosecutor for further investigation. The applicant was also informed of possible measures that would be applied if the investigation again failed to comply with previous investigative instructions. 38. On 4 December 2001 the Crimea Department of the Interior, following instructions by the Crimea Prosecutor's Office and District Prosecutor, instructed the Police Department in respect of further investigation into the case. Consequently, between 11 December 2001 and 25 January 2002 the investigator ordered a forensic examination which was conducted from 14 to 15 December 2001, and questioned two witnesses. The forensic examination confirmed multiple injuries on E.'s body and the cause of his death (see paragraph 8 above). 39. On 14 March 2002 the investigator drew up two resolutions terminating criminal investigation into suspicion of D.'s and S.'s involvement into infliction of serious bodily injury to E. and his robbery, as there was no corroborating evidence to prove their guilt. 40. On 26 March 2002 he remitted criminal case no. 76662 to the District Court in order to decide whether D. and S. should be exempted from criminal liability as the new Criminal Code which had entered into force on 1 October 2001 did not provide for liability for such an offence as failure to report a crime. 41. On 7 July 2002 the applicant complained to the District Prosecutor and the Crimea Prosecutor's Office that the resolutions of 14 March 2002 were unlawful. 42. On 10 July 2002 the District Court terminated the criminal investigation into the robbery allegations, as defined by the 1960 Criminal Code, against D. and S., owing to the change in the legislative situation. It remitted the case to the prosecution for further investigation insofar as it concerned charges under the provisions of the new Criminal Code, i.e. infliction of serious bodily injury and armed robbery. This ruling was not subject to appeal. 43. Subsequently, the senior investigator of the Police Department issued an undated information note in criminal case no. 76662 stating that owing to the lengthy period of time that had passed from the commission of the crime, some evidence had been lost and could no longer be recovered. 44. On 12 July and 19 August 2002 the Crimea Prosecutor's Office referred the applicant's complaints of the alleged unlawfulness and unreasonable length of the investigation to the District Prosecutor. 45. In the meantime, on 8 August 2002, the General Prosecutor's Office had remitted these complaints to the District Prosecutor for review. 46. On 8 September 2002 the latter quashed the resolution of 20 July 2001 that terminated the criminal proceedings in the case no. 76662 (see paragraph 33 above) and ordered additional investigation into the case. On 20 October 2002 he assumed responsibility over the investigation. 47. On 17 January 2003 the investigation regarding involvement of V.B. in death of E., after several investigative measures, including questioning of the police officer S-v, was again terminated, V.B. having died in 1994. 48. On the same date the District Court refused to examine the applicant's complaints against the resolution of 14 March 2002 on the charges against S., having been lodged outside the procedural time-limits. It also found that the resolution had been quashed on 10 July 2002 and the investigation into S.'s suspected involvement in a crime had been remitted to the prosecutor for additional investigation (see paragraph 42 above). 49. On 23 January 2003 the Crimea Prosecutor's Office quashed the resolution of 17 January 2003 and remitted the case to the District Prosecutor finding that the investigators had failed to comply with the investigative instructions given by the General Prosecutor's Office and the Crimea Prosecutor's Office (see paragraphs 27 and 36 above). In particular, contradictory evidence given by S. and D. had never been verified, and they had not been confronted with the witnesses. Moreover, certain witnesses had not been questioned on important matters relating to the identification of people who had been on the spot at the relevant time, including V.B. 50. On 30 January 2003 the District Prosecutor remitted the investigation to the Police Department fixing a deadline until 25 February 2003 for informing him of the investigation results. 51. On 19 March 2003 the Crimea Prosecutor's Office sent a copy of the forensic medical examination of V.B.'s body to the Crimea Police Department. 52. On 27 March 2003 the senior investigator of the Police Department ordered a further forensic examination the result of which, obtained on 2 April 2003, were to some extent imprecise. 53. On 13 May 2003 case no. 76662 was remitted to the District Court for examination of the applicant's complaints against the resolutions of 14 March 2002, closing the investigation against S. and D. 54. On 15 May 2003 the Crimea Court of Appeal quashed the resolution of 17 January 2003 (see paragraph 47 above) and remitted the applicant's complaints regarding D. for a rehearing by another judge. It found, in particular, that the applicant and her lawyer had not been informed of the time of the hearing, that the new judge hearing the case had not familiarised himself with the case file, that the applicant had lodged her complaints in time, contrary to the findings of the District Court, and that there had been serious infringements of the criminal procedural law. 55. On 26 September 2003 the District Court found that the investigation had not complied with the prosecutors' instructions (see paragraphs 36 and 38 above). It further referred to a number of procedural inaccuracies in the investigation. The court also quashed the resolution of 14 March 2002 and remitted the case to the District Prosecutor who had to identify and question the persons who had been present during the events in the bar and to identify additional witnesses in the case. 56. In a resolution of 5 July 2004 the senior investigator of the Police Department terminated the investigation in case no. 76662 finding, in particular, that there was not enough evidence to conclude that V.B. had been involved in E.'s death, and no evidence of D.'s and S.'s involvement in the murder and the robbery had been found either. He had questioned several witnesses and conducted confrontations between them and the suspects. Moreover, the proceedings on the alleged failure to report a crime had been discontinued on 10 July 2002 by the District Court. Anyhow, as the main suspect had died, criminal proceedings could no longer be pursued. 57. While the Deputy Prosecutor of the District Prosecutor's Office found the above resolution well-founded on 7 July 2004, the District Court quashed it as unfounded on 20 October 2004 stating, in particular, that there was no evidence to suggest that V.B. was guilty of inflicting bodily injuries on E. Accordingly, case no. 76662 was again remitted to the District Prosecutor for additional investigation. 58. On 9 October 2007 and 6 January 2008 respectively, the applicant informed the Court that no measures had been taken to continue the investigation into the circumstances of her son's death. VIOLATED_ARTICLES: 2

Exhibit 10.12 EMPLOYMENT AGREEMENT THIS AGREEMENT (this “Agreement”), dated as of August 10, 2001 is between Henry Company (the “Employer” or the “Company”), and William Baribault (the WHEREAS, the Employer is a California corporation; and WHEREAS, the Employer desires to retain the services of the Executive in an executive capacity and the Executive desires to be employed by the Employer upon the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the agreements herein contained, the parties 1.             EMPLOYMENT. (a)           The Employer hereby employs the Executive, and the Executive hereby accepts such employment, as President and Chief Operating Officer of the Employer.  The Executive shall report, and be subject, to the direction of the Employer’s Chief Executive Officer, and shall have such powers and duties generally consistent with the duties and offices of a President and Chief Operating Officer as shall from time to time be reasonably assigned to him by the Employer’s Chief Executive Officer or Board of Directors. (b)           The Executive agrees to (i) use his best efforts to promote the interests of the Employer, (ii) devote his full business time and energies to the business and affairs of the Employer during the Term, (iii) comply with Employer’s employment and conflict of interest policies, and (iv) discharge his duties in a diligent and faithful manner in accordance with the directives of the Chief Executive Officer and Board of Directors.  Notwithstanding the foregoing, it is expressly understood and agreed that it shall in no way be deemed a violation of any of the terms of this Agreement if (i) Executive engages in such charitable and/or volunteer work as he reasonably elects during the Term and/or (ii) Executive continues his involvement with those entities more particularly described in Exhibit A hereto; provided such activity does not materially hinder the Executive’s ability, or materially infringe on the time necessary, to perform his duties hereunder. 2.             APPOINTMENT AS DIRECTOR.  The Employer shall use its best efforts to cause the Executive to be appointed, and Warner Henry shall exercise his voting power to elect Executive, as a Director of the Employer and a member of the Audit and Executive Committees of the Board of Directors.  The Executive shall remain a Director during the Term unless: (a)           the Executive notifies the Employer’s Board of Directors that he is no longer willing to be a director, or (b)           Executive’s employment has been terminated hereunder.   1   3.             TERM OF EMPLOYMENT.  The Executive’s employment term shall be deemed to have commenced on August 10, 2001, and shall end on December 31, 2005, unless earlier terminated pursuant to Section 5 of this Agreement (the “Term”).  Upon the end of the Term, neither party shall have an obligation, express or implied, to extend the Agreement or to negotiate a new agreement. 4.             COMPENSATION. (a)           Base Salary.  As compensation for services hereunder during the Term, the Employer shall pay the Executive an annual salary of $300,000.00 (“Base Salary”), which shall be payable in appropriate installments to conform with the regular payroll dates for salaried personnel of the Employer.  The amount of Executive’s Base Salary shall be reviewed annually by the Employer’s Board of Directors. (b)           Bonus.  The Employer shall pay the Executive an annual performance bonus (a “Performance Bonus”) in an amount to be calculated based on the Employer’s Operating Result for that year, as set forth in Exhibit A attached hereto, but in no event shall the Employer pay the Executive a Performance Bonus of less than $100,000 with respect to the Employer’s 2001 fiscal year.  The Performance Bonus will be paid to Executive thirty (30) days after the Employer’s determination of the Performance Bonus set forth in Exhibit B. If Executive’s  employment is terminated pursuant to Sections 5(b), 5(d) 5(e) or 5(g) hereof, Executive will receive a Performance Bonus with respect to the year in which his employment is terminated as follows: (i)            If the termination occurs on or before June 30 of any fiscal year, the Performance Bonus for the fiscal year in which the termination occurs will be pro rated for the number of full months elapsed in the fiscal year of termination. (ii)           If the termination occurs after June 30 in any fiscal year, Executive will receive the Performance Bonus to which he would have been entitled for the entire fiscal year in which the termination occurs. If Executive’s employment is terminated pursuant to Sections 5(a), (c) or (f), Executive shall receive no Performance Bonus with respect to the year in which his employment is terminated. (c)           Benefits.  During the Term, the Executive shall receive a benefits package consisting of the following: (i)            The Executive shall be entitled to participate in and receive benefits on the same basis as other senior executives of the Employer, under the Employer’s standard medical and dental plans and the Employer’s executive long term disability plan, each as in effect on the date hereof, or any such plans made available by the Employer in the future to its employees, subject to and on a basis 2 consistent with the terms, conditions and overall administration of such plans and arrangements. (ii)           The Executive shall be entitled to participate on the same basis as other senior executives of the Employer in the Employer’s 401(k) program. (iii)          The Executive shall be entitled to participate on the same basis as other senior executives of the Employer in other benefit programs made available to senior executives of Employer, such as the Employer’s Executive Deferral Program and car allowance program. (iv)          The Executive shall be entitled, commencing the date hereof, to an allowance of up to $2,000 per month for such elective benefits as are offered by Employer to other senior executives, such as seminars, country club dues, YPO events, etc.  Employer shall be obligated to reimburse Executive for the elective benefits only if it receives adequate documentation of the expenditure. (v)           The Executive shall be entitled to four weeks paid vacation time during each year of the Term. 5.             TERMINATION.  The Term will terminate: (a)           by and upon the mutual consent of the Executive and the Employer; (b)           upon the death of the Executive; (c)           by the Employer, for “Cause,” upon written notice.  “Cause” shall mean and be limited to the Executive’s:  (i) conviction (or the indictment of) or the entering of a guilty plea or plea of no contest with respect to a felony or any crime involving fraud or moral turpitude ; (ii) any act or omission involving dishonesty, misappropriation, embezzlement or fraud affecting Employer; (iii) continued failure to perform duties specified by the Chief Executive Officer after written notice and, if susceptible to remedy or cure, is not cured or remedied and continues for ten business days after the Employer’s Chief Executive Officer has given written notice with a copy to the Board of Directors and Executive specifying the manner in which the duties have not been performed; (v) repeated insobriety or use of any illegal drugs while rendering services hereunder; (vi) gross neglect or gross misconduct resulting in material harm to the Employer or any of its affiliates; or (vii) material breach of this Agreement and failure to cure such breach within 30 days of written notice from the Employer; (d)           by the Employer, if, as a result of the Executive’s incapacity due to physical or mental illness, the Executive shall have been absent from his duties hereunder on a full-time basis for 180 consecutive days, and, within thirty (30) days after a Notice of Termination (as hereinafter defined) is given by the Employer, the Executive shall not have returned to the performance of his duties hereunder on a full-time basis.  Such Notice of Termination shall be provided by the Employer on or after the date on which the Executive has been absent for 150 consecutive days;   3   (e)           by the Employer, without Cause, at any time; (f)            by Executive, after 30 days after Notice of Termination is given to Employer’s Board of Directors. (g)           by Executive for Good Reason, after 30 days after Notice of Termination is given to Employer’s Board of Directors.  Good Reason shall mean and be limited to Employer’s material breach of this Agreement and failure to cure such breach within 30 days of written notice from Executive. (h)           Notice of Termination.  Any termination by the Employer pursuant to subparagraphs (a), (c), (d), or (e) above or by the Executive pursuant to subparagraph (f) or (g) above shall be communicated by written Notice of Termination to the other party hereto. (i)            Date of Termination.  Date of Termination shall mean (i) if the Executive’s employment is terminated pursuant to subparagraph (b), the day after the Executive’s death; (ii) if the Executive’s employment is terminated pursuant to subparagraph (d) above, thirty (30) days after Notice of Termination is given provided that the Executive shall not have returned to the performance of his duties on a full-time basis during such thirty day period), and (iii) if the Executive’s employment is terminated pursuant to subparagraph (a), (c), (e), (f) or (g) above, the date specified in the Notice of Termination. 6.             COMPENSATION UPON TERMINATION. (a)           If the Executive’s employment shall be terminated pursuant to Sections 5(a), (c) or (f) hereof, the Executive shall only be entitled to his accrued but unpaid Base Salary at the time of Termination and benefits and reimbursement for his accrued but unused vacation time, through the date of termination.  Upon making the payments pursuant to this Section 6(a), the Employer shall have no further obligations to the Executive. (b)           If the Executive’s employment is terminated pursuant to Sections 5(b) or (d) hereof, the Employer shall pay the Executive the amounts as provided in Section 6(a) hereof, and any earned Performance Bonus as determined by Section 4(b) hereof.  Upon making the payments pursuant to this Section 6(b), the Employer shall have no further obligations to the Executive. (c)           If the Executive’s employment is terminated pursuant to Section 5(e) or (g) hereof, the Employer shall pay the Executive the amounts as provided in Section 6(a) and any earned Performance Bonus as determined by Section 4(b) hereof.  In addition, if Executive’s employment is terminated on or before the following dates, Executive shall receive the following amounts designated as “Severance Pay”:   4   Date of Termination   Severance Pay       On or before January 9, 2003   1 times the then Base Salary       After January 9, 2003 and on or before January 9, 2004   1 1/2 times the then Base Salary       After January 9, 2004 and on or before January 9, 2005   2 times the then Base Salary       After January 9, 2005   2 1/2 times the then Base Salary   ; provided, however, that Employer shall only be obligated to pay such Severance Pay on the eighth (8th) day following Executive’s execution and delivery of the form of General Release set forth as Exhibit C hereof.  The total amount of Severance Pay payable to the Executive shall be prorated over the period from the date of termination through December 31, 2005 and paid in equal quarterly installments (beginning with the first day of the next fiscal quarter) through January 1, 2006.  Upon making the payments pursuant to this Section 6(c), the (d)           The amounts payable hereunder upon termination of the Executive’s employment shall be the Employer’s entire liability to the Executive in connection with Executive employment or termination thereof.  If the Employer purports to terminate the Executive for Cause, but it is later determined that the termination was without Cause, Employer’s liability shall be limited to that provided for in this Section 6. 7.             CONFIDENTIAL INFORMATION; NON-SOLICIT AGREEMENT. (a)           Executive acknowledges that during the Term and as part of his employment, Executive will be provided special access to “Confidential Information” and that any unauthorized disclosure of such Confidential Information could have an adverse impact on Employer and its business.  Executive will hold all such Confidential Information in a fiduciary capacity for the benefit of the Employer.  After termination of Executive’s employment, Executive will not, without the prior written consent of the Employer or as may otherwise be required by court order, communicate or divulge any such Confidential Information to anyone other than the Employer and those designated by it.  “Confidential Information” means information not known by the trade generally or not reasonably available to a knowledgeable person in the trade, even though such information may have been disclosed to one or more third parties pursuant to consulting agreements, joint venture agreements or other agreements entered into by the Employer and includes, without limitation, trade secrets, designs, plans, formulas, customer lists, lists of suppliers and all other confidential and proprietary information. (b)           During the Term, the Executive agrees that he will not, either directly or indirectly, either as an owner, part-owner, partner, shareholder, principal, officer, director, manager, operator, employee, salesman, agent, independent contractor, or other participant, participate in, carry on, or engage in an enterprise anywhere in the United States or Canada whose primary business is similar to or competes with within the Employer’s business, except that he may own less than 2% of a publicly traded company engaged in such activities. (c)           During the Term and for two years after Executive’s employment terminates hereunder, the Executive agrees that he will not directly or indirectly:  request or advise any customer of the Employer to withdraw, curtail or cancel its business or dealings with the Employer; solicit or accept the business of such customers with respect to the Employer’s coating business on behalf of anyone except the Employer; disclose to any person, corporation, or entity outside the Employer the names of, or other identifying facts concerning, any of the 5   Employer’s customers or suppliers; or induce or solicit any employee of the Employer to terminate his or her employment with the Employer or hire any employee of the Employer (except Executive’s personal assistant). (d)           The parties hereto acknowledge and agree that monetary damages for breach of this Section 7 would not be easily ascertainable and that the remedy at law for breach of this Section 7 is inadequate.  The Employer shall therefore be entitled, in addition to such other remedies (whether at law or at equity) as it may have, to temporary and permanent injunctive relief for any breach or threatened breach of this Section 7 without proof of any actual damages that have been or may be caused by such breach. 8.             INDEMNIFICATION.  Executive shall be entitled to all such indemnity rights as may be generally available to officers, directors and/or agents of Employer  pursuant to any applicable law or to any other contract with, or the Bylaws of, Employer as may be now or hereafter in effect.  Notwithstanding any other provision of this Agreement, such rights shall survive any termination or expiration of this Agreement. 9.             BREACH BY EXECUTIVE.  Both parties recognize that the services to be rendered under this Agreement by the Executive are special, unique and extraordinary in character, and that in the event of the breach by the Executive of the terms and conditions of this Agreement to be performed by him, or in the event the Executive performs services for any person, firm or corporation engaged in a competing line of business with the Employer, then the Employer shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages for any breach of this Agreement, or to enforce the specific performance thereof by the Executive, or to enjoin the Executive from performing services for any such other person, firm or corporation. 10.           ASSIGNMENT.  This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective successors, assigns, heirs, and legal representatives, including any entity with which the Employer may merge or consolidate or to which all or substantially all of its assets may be transferred. The duties and covenants of the Executive under this Agreement, being personal, may not be delegated. 11.           NO WAIVER.  The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right to insist upon adherence to that term or any other term of this Agreement.  Any waiver or amendment to this Agreement must be in writing. 12.           WITHHOLDINGS.  All compensation provided by Employer under this Agreement is subject to any and all withholdings by Employer as required by applicable law. 13.           GOVERNING LAW; CAPTIONS.  This Agreement contains the entire agreement between the parties as to the employment relation between the parties and shall be governed by the laws of the State of California.  This Agreement may not be changed orally, but only by agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.  Paragraph headings are for convenience of reference only and shall not be considered a part of this Agreement.   6   14.           ARBITRATION. (a)           Arbitrable Disputes.  The Employer and the Executive agree to use final and binding arbitration to resolve any dispute each may have with the other or any affiliate relating to this Agreement or the Executive’s employment with and/or termination from the Employer (an “Arbitrable Dispute”).  An Arbitrable Dispute may include, but shall not be limited to, any dispute about the validity, interpretation, or effect of this Agreement, or alleged violations of it; any and all claims arising out of any alleged discrimination, harassment, or retaliation; and any and all claims arising under or covered by the Fair Labor Standards Act, as amended, the Age Discrimination in Employment Act of 1967, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Americans with Disabilities Act of 1990, as amended, Section 1981 of Title 42 of the United States Code, as amended; the California Fair Employment and Housing Act, as amended, California Labor Code Section 200 et seq., as amended; and California Labor Code Section 500 et seq., as amended.. (b)           Injunctive Relief.  The Executive and the Employer agree that, notwithstanding Section 14(a), above, when irreparable harm is present or threatened, and where either party is seeking only injunctive relief (e.g., a temporary restraining order, temporary injunction or permanent injunction), such party may file suit or bring an application for such injunctive relief in any federal or state court of competent jurisdiction without violating this Agreement and such suit for injunctive relief will not be considered an Arbitrable Dispute. (c)           The Arbitration.  The Executive and the Employer agree that the arbitration will take place in Los Angeles County, California, in accordance with the arbitration rules and procedures of the American Arbitration Association then in effect.  The arbitration shall take place before a single, neutral arbitrator experienced in employment matters who is licensed to practice law in California,  The Executive and the Employer agree to select a mutually agreeable arbitrator, and if the parties are unable to do so within ten (10) business days, an arbitrator shall be selected in accordance with the rules of the American Arbitration Association.  The arbitrator may not modify or change this Agreement in any way.  Discovery shall be governed by CCP Section 1283.05.  ruling setting forth the essential findings of fact and conclusions of law on which the arbitration finding or award is based.  To the extent that the applicable arbitration rules are inconsistent with this Section 14, Section 14 shall govern. (d)           Fees and Expenses.  Each party will pay the fees of their respective attorneys, the expenses of their witnesses, costs of any record or transcript of the arbitration, and any other expenses connected with the arbitration that such party might be expected to incur had the dispute been subject to resolution in court, but all costs of the arbitration that would not be incurred by the parties if the dispute was litigated in court, including the fees of the arbitrator and any arbitration association administrative fees (“Unique Arbitration Costs”), will be paid by the Employer.  The prevailing party may be entitled to recover their reasonable attorney fees and costs from the nonprevailing party to the extent permitted by law; provided, however, that the Unique Arbitration Costs will be paid by the Employer.   7   (e)           Jury Right.  The Executive and the Employer understand that this arbitration agreement constitutes a waiver of each party’s respective rights to a jury trial and relates to the resolution of every Arbitrable Dispute brought by the Executive or the Employer. (f)            Severability.  The Executive and the Employer agree that to the extent any specific provision of this agreement to arbitrate claims shall be held void, voidable or unenforceable, the remaining provisions shall remain in 15.           COMPLETE AGREEMENT.  This Agreement terminates all prior agreements between the parties relating to the subject matter herein addressed.  In the event of termination of employment under any of the circumstances described herein, the arrangements provided for by this Agreement will constitute the entire obligation of the Employer to the Executive and performance thereof by the Employer will constitute full settlement of any claim that the Executive might otherwise assert against the Employer or any affiliate of the Employer on account of such termination. 16.           SEVERABILITY.  If any provision of this Agreement is illegal and unenforceable in whole or in part, the remainder of this Agreement shall remain 17.           EFFECT OF TERMINATION.  Notwithstanding the termination of this Agreement at the end of the Term, or earlier pursuant to Section 5 or otherwise, Sections 4-20 of this Agreement shall survive. 18.           NOTICES.  Any notices or other communications required or permitted hereunder shall be in writing and shall be deemed effective (i) when delivered in person (in the Employer’s case to the Chief Executive Officer), (ii) sent by facsimile (with written confirmation of receipt), provided that a copy is mailed by registered mail, or (iii) if sent by overnight mail, on the date received by the respective party at the Employer’s headquarters offices, or such other address as shall have been specified in writing by either party to the other. 19.           ATTORNEYS’ FEES.  If it is necessary for either party to institute any proceeding (including arbitration), action or suit to enforce any rights under this Agreement, the party not prevailing in such proceeding, action or suit agrees to pay the prevailing party’s reasonable costs and disbursements and such sums as the judge of the court (or arbiters of forum) may adjudge reasonable as attorney fees in any such proceeding, action or suit or in any appeal thereof. 20.           BINDING EFFECT.  The covenants, conditions and terms of this Agreement shall extend to and be binding upon and inure to the benefit of the parties, their successors, heirs, personal representatives, trustees, and other legal representatives.   8   IN WITNESS WHEREOF, the Employer has by its appropriate officer signed this Agreement and the Executive has signed this Agreement, as of the day and year first above written. Dated:  August 10, 2001 Employer       HENRY COMPANY       By:       Warner W. Henry     CEO, Henry Company       Executive           William Baribault       This Agreement dated August 10, 2001 supercedes any other Employment Agreement between the parties dated August 10, 2001.       9   EXHIBIT A The following are entities which Executive currently is involved and in which he may remain involved during the Term: ENTITY   INVOLVEMENT       PROFESSIONAL BUSINESS BANK   MEMBER, BOARD OF DIRECTORS; CHAIRMAN OF BOARD       APPLIED INDUSTRIAL TECHNOLIGIES   CONSULTANT       EAGLE INVESTMENTS, A CALIFORNIA LIMITED PARTNERSHIP   GENERAL PARTNER, MEMBER, BOARD OF DIRECTORS       EAGLE ASSOCIATES, LLC   MEMBER, MANAGER, PRESIDENT       ARCHITECTURAL WOODWORKING   MEMBER, BOARD OF DIRECTORS       M. CHEMICAL COMPANY         DESCANSO GARDENS   MEMBER, BOARD OF DIRECTORS, CHAIRMAN       OAKWOOD ENTERPRISES   OWNER OF INACTIVE COMPANY       PAUL MAR   OWNER OF INACTIVE COMPANY     10   EXHIBIT B   The Executive shall receive a Performance Bonus pursuant to Section 4 of this Agreement in an amount calculated pursuant to the following table: Operating Result   Performance Bonus Less than 0.80   $0 0.80 or greater but less than 1.00   50% of Executive’s Base Salary 1.00 or greater   100% of Executive’s Base Salary + 4% percent of each dollar of Actual EBITDA or fraction thereof, in excess of the Target Earnings.   The Company’s Operating Result is calculated as follows: Operating Result = Actual EBITDA     Target Earnings   For purposes of the above formula: a.                                       “Actual EBITDA” means, in any applicable fiscal year, the Company’s net income before extraordinary and non-recurring gains net of the expenses incurred to attain those gains (but including extraordinary and non-recurring losses), interest, income taxes, depreciation, amortization, and cumulative effects of changes in accounting principles as determined by the Company from Company’s annual audited financial statements for such applicable year. b.                                      “Target Earnings” means, as to any applicable year, the Company’s projected target earnings before interest, taxes, depreciation, and amortization for such applicable year as set forth in the Company’s annual operating plan approved by the Board of Directors. c.                                       The Operating Result calculation must include the Performance Bonus contemplated pursuant to Section 4(b), and still equal or exceed the appropriate achievement level to be paid.  For example, if the Target Earnings is $13,000,000, then the .80 Operating Result requires $10,550,000 ($10,400,000 plus $150,000 Performance Bonus) Actual EBITDA.  The 1.00 Operating Result would require $13,300,000 ($13,000,000 plus $300,000 Performance Bonus) Actual EBITDA.   11   EXHIBIT C GENERAL RELEASE 1.             Release by Executive. (a)           Executive, on his own behalf and on behalf of any assignee, heir, or other successor, hereby releases, acquits and forever discharges the Employer, its predecessors and successors, parent, subsidiaries, and all of those entities’ current and former partners, shareholders, heirs, assigns, employees, agents, officers, directors, attorneys and insurers (hereinafter, collectively referred to as the “Employer Releasees”) from any and all claims, expenses, debts, demands, costs, contracts, liabilities, obligations, actions and causes of action of every nature, under any theory under the law, whether common, constitutional, statutory or other of any jurisdiction, foreign or domestic, whether known or unknown, whether in law or in equity, which he has or had or may claim to have on his own behalf or on behalf of any other entity by reason of any and all matters from the beginning of time to the Execution Date.  The claims released by Executive specifically include, but are not limited to, claims for fraudulent inducement, breach of contract, constructive discharge, payment of past-due commissions, interference with contractual relations or prospective business advantage, negligent or intentional infliction of emotional distress, violation of constitutional or statutory rights, attorney fees or costs and/or discrimination based on race, national origin, sex, religion, age, sexual orientation and/or disability.  Executive also expressly recognizes and acknowledges that he is releasing on his own behalf and on behalf of any other successor any and all rights and claims arising under any statute, law or constitution including, but not limited to, any rights or claims under the California Labor Code, as amended, the Fair Labor Standards Act, as amended, the Age Discrimination in Employment Act of 1967, as amended, Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment and Housing Act, as amended, the Equal Pay Act, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Americans with Disabilities Act of 1990, the False Claims Act, as amended, the Age Discrimination in Employment Act of 1967, as amended, and/or Section 1981 of Title 42 of the United States Code.    Nothing contained in this General Release is intended to or shall act in any way to waive, release or limit any rights Executive may have to indemnity pursuant to any applicable law or to any other contract with, or the Bylaws of, Employer. (b)           EXECUTIVE SPECIFICALLY ACKNOWLEDGES THAT HE IS RELEASING ANY AND ALL AGE DISCRIMINATION CLAIMS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. (c)           Executive expressly waives any and all rights under Section 1542 of the Civil Code of the State of California, and any like provision or principle of common law in any foreign jurisdiction.  Section 1542 provides as follows: known by him must have materially affected his settlement with debtor.     1     Thus, notwithstanding the provisions of Section 1542, and for the purpose of implementing a full and complete release and discharge, Executive expressly acknowledges that this Agreement is intended to include in its effect, without limitation, claims and causes of action which he does not know of or suspect to exist in his favor at the time of execution hereof and that this Agreement contemplates extinguishments of all such claims and causes of action. 2.             No Pending Charges.  Executive represents that he has no pending complaints, actions, charges or claims of any nature against the Employer Releasees based on or related to any events prior to the execution of this Agreement.  Moreover, Executive agrees not to file any complaints, actions, charges or claims of any nature against the Employer Releasees relating to any event or alleged event, including, but not limited to, those arising from his employment with and/or separation from the Employer, which occurred from the beginning of time until the execution of this Agreement. 3.             No Assignments.  Executive warrants and represents that he has not assigned or in any way conveyed, transferred or encumbered all or any portion of the claims or rights covered by this Agreement.  Executive further agrees to indemnify and hold the Employer Releasees harmless from any liability, claims, demands, costs, expenses, and attorney fees incurred by the Employer Releasees, as a result of any such person asserting any such assignment or transfer of any rights or claims under any such assignment or transfer. 4.             Consultation With Counsel.  Executive represents and warrants that he has been advised to and has discussed this Agreement with his attorney, that he has carefully read and fully understands all of the provisions of this Agreement, and that he is entering into this Agreement voluntarily.  Executive has twenty-one (21) days from receipt of this Agreement to consider this offer and, after signature, will have seven (7) days to revoke it.                 William Baribault       2

Title: Bought a new construction house with fake outlets. (TN) Question:I bought a new construction house, had it inspected and everything. I moved in this weekend and the cable guys came over today. Apparently all the cable outlets are fake. They don’t have any wires behind the wall. He said I should contact the builders to have them finish wiring the house. Is that the right move? [no wires in the wall](https://imgur.com/gallery/tXTKT) Answer #1: Check your house plans, or get someone experienced in reading blueprints to go over them. Just closed on new construction house in January, and walked through about every week of the process to see what's inside the walls before closing up. It's mind boggling (unless the builder pre-installed pulls strings through conduit or something of the like) but if there's fire-blocking in the walls, the cable company is going to have a heck of a time fishing those wires, especially with exterior insulated walls. Might I ask, did you observe the construction process before things were closed in?Answer #2: It's not fake. That is a low voltage outlet location with conduit. It depends on what was in the contract with the builder. The conduit is actually better, as it gives you flexibility on what type of wire you want run to that point, whether that is coax, cat5/6 or even fiber. It shouldn't have been a big issue for the cable installers to push some coax through the conduit. Answer #3: Where does the conduit go? If the conduit runs to the crawlspace I'd be ecstatic! Typical high-voltage electricians don't know what they're doing with regard to low voltage installations, nor do they know what the end-user will actually want or need. If the hard part was done, putting in the wallplates and conduit, I could run whatever cable I actually need with ease. Coax, CAT-5/6, fiber, speakers, HDMI, etc. As a former satellite installer, you wouldn't believe the number of times I got to a (usually higher-end) house that was "pre-wired" and had to pull all new cable because they builder didn't do it right. They used the wrong grade of cable, set it up as a daisy-chain, damaged the cable when running it, etc. Those owners were upset because they spent extra for it and couldn't even use it. Had they just run conduit into the crawlspace for each wallplate, it would have been far better.Answer #4: In my state it may be different, but it would be the cable installer's responsibility to run cables to the outlets (which may or may not be on your dime). I've never purchased a home where coax cable was pre-run from the outside to the inside of the home by the home builders. Cable outlets at the wall may have been installed, but I've never seen coax cable pre-installed to them. They're just stubs, ready for the cable installers to do their thing. Having said that, I've never purchased a new construction home, either, and that may be the difference. Maybe it's different in Tennessee. I'd contact the builders and inquire about whose responsibility it is to run coax cable to the various cable outlets located around the home.Answer #5: Electrician’s spouse here. I consulted him before writing this post. **This is normal and okay.** ~~Call up the cable company and they’ll get you set up.~~ IF this is only present with datacom outlets (coaxial cables, possibly phone and cat5 ethernet as well), it’s generally not in the construction contract to pull those cables. See the plastic tube (conduit) inside? The wires are pulled through it. That means the electrician did all the work to connect the outlet, other than actually cable it. It’s going to be easy ~~for the cable company~~ to get you connected. **Edit: Since the cable guys who came out couldn’t/didn’t wire it:** (1) Review your contract and/or call the builder. If it’s their responsibility to cable for coax, get them out to finish up. and/or (2) Call the cable company again to set up service. Explain you need coax cable pulled (wired), but your outlets are otherwise ready. Some cable companies will immediately give you a price. Others will send out a senior tech and lump it into your installation service.Answer #6: Those aren't fake outlets. That aren't even outlets, it's just for coax cable. It doesn't have anything to do with wiring code at all. That just means the cable company hasn't run any cable yet, because it's on their schedule. It's easier to put the outlets in, then whenever the cable company comes it's already there.Answer #7: Most new homes are pre-wired with low voltage tele-communications by the builders electrician. That being said, your builder should have been up front with what communications wiring would be completed. Newer homes are mostly running CAT6 and minimal Coax cable outlets as the shift is to wireless. Source: I am a Manager for a Cable company. On the plus side it looks like there may be conduit (without pull string).

May 4, 2007 VIA EDGAR The United States Securities and Exchange Commission 100 F Street, NE Washington, D.C. 20549-0506 Subject:Nationwide VLI Separate Account-4 Nationwide Life Insurance Company SEC File No.333-52615 CIK No.0001041357 Ladies and Gentlemen: Pursuant to Rule 497(j) under the Securities Act of 1933 and on behalf of the Nationwide VLI Separate Account - 4 (the “Variable Account”) and Nationwide Life Insurance Company (“the Company”), we certify that the form of the prospectus which would have been filed under paragraphs (b) or (c) of Rule 497 does not differ from the form of the Prospectus contained in Post Effective Amendment No. 17 to the Registration Statement for the Company and the Variable Account which became effective May 1, 2007. Please contact the undersigned at (614) 249-9527 with any questions regarding this filing. Sincerely, NATIONWIDE LIFE INSURANCE COMPANY /s/STEPHEN F. AYERS Stephen F. Ayers Senior Counsel Home Office:One Nationwide PlazaNationwide Insurance Columbus, Ohio 43215-2220Nationwide Financial Legal Counsel to the Nationwide Insurance Companies and their Associated Companies

Exhibit 31.2Certification of the Chief Financial Officer of Genesis Capital Corporation of Nevada pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 I, Christopher Astrom, certify that: 1. I have reviewed this Form 10-Q of Genesis Capital Corporation of Nevada; 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 small business issuer as of, and for, the periods presented in this report; 4. The small business issuer's other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the small business issuer 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 small business issuer, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Evaluated the effectiveness of the small business issuer's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (c) Disclosed in this report any change in the small business issuer's internal control over financial reporting that occurred during the small business issuer's most recent fiscal quarter (the small business issuer's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the small business issuer's internal control over financial reporting; and 5. The small business issuer's other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the small business issuer's auditors and the audit committee of the small business issuer'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 small business issuer'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 small business issuer's internal control over financial reporting. Date: May 15, 2008 /s/ CHRISTOPHER ASTROM Christopher Astrom Chief Financial Officer

Exhibit g.2. FEE WAIVER AGREEMENT THIS FEE WAIVER AGREEMENT (the "Agreement") dated as of September 14, 2009, is by and between Tortoise Capital Advisors, L.L.C. (the " Adviser") and Tortoise North American Energy Corporation (the “Company”). WHEREAS, in conjunction with the reorganization of Tortoise Gas and Oil Corporation with and into the Company, the Adviser desires to enter into a Fee Waiver Agreement covering the period from January 1, 2010 through December 31, 2010, and the period from January 1, 2011 through January 31, 2011; and WHEREAS, the stockholders of the Company will benefit from the waivers by incurring lower Company operating expenses than they would absent such waivers. NOW, THEREFORE, the Adviser agrees to waive (i) 0.10% of its 1.00% investment advisory fee, thereby reducing the investment advisory fee to 0.90% of the Company's average monthly managed assets (as defined in the Investment Advisory Agreement to be dated September 15, 2009 between the Company and the Adviser) for the period from January 1, 2010 through December 31, 2010, and (ii) 0.05% of its 1.00% investment advisory fee, thereby reducing the investment advisory fee to 0.95% of the Company’s average monthly managed assets (as defined in the Investment Advisory Agreement dated September 15, 2009 between the Company and the Adviser) for the period from January 1, 2011 through December 31, 2011. IN WITNESS WHEREOF, the Adviser and the Company have agreed to this Fee Waiver Agreement as of the day and year first above written. TORTOISE CAPITAL ADVISORS, L.L.C. By: /s/ Terry C. Matlack Name:Terry C. Matlack Title: Managing Director TORTOISE NORTH AMERICAN ENERGY CORPORATION By: /s/ David J. Schulte Name:David J. Schulte Title:Chief Executive Officer

Exhibit32.01 OFFICER CERTIFICATION CERTIFICATION PURSUANT TO 18 U.S.C. SECTION1350, AS ADOPTED PURSUANT TO SECTION-OXLEY ACT OF 2002 In connection with the Annual Report of Southwestern Public Service Company (SPS) on Form10-K for the year ended 2011, as filed with the SEC on the date hereof (Form10-K), each of the undersigned officers of SPS certifies, pursuant to 18 U.S.C. Section1350, as adopted pursuant to Section906 of the Sarbanes-Oxley Act of 2002, that, to such officer’s knowledge: The Form10-K fully complies with the requirements of Section13(a)or 15(d)of the Securities Exchange Act of 1934; and The information contained in the Form10-K fairly presents, in all material respects, the financial condition and results of operations of SPS as of the dates and for the periods expressed in the Form10-K. Date: Feb.27, 2012 /s/ C. RILEY HILL C. Riley Hill President, Chief Executive Officer and Director /s/ TERESA S. MADDEN Teresa S. Madden Senior Vice President, Chief Financial Officer and Director The foregoing certification is being furnished solely pursuant to 18 U.S.C. Section1350 and is not being filed as part of the Report or as a separate disclosure document. A signed original of this written statement required by Section906, 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 Section906, has been provided to SPS and will be retained by SPS and furnished to the SEC or its staff upon request.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended June 30, 2012 OR [ ] TRANSACTION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to COMMISSION FILE NO. 0-17629 ADM TRONICS UNLIMITED, INC. (Exact name of registrant as specified in its charter) Delaware (State or Other Jurisdiction of Incorporation or organization) 22-1896032 (I.R.S. Employer Identification Number) 224-S Pegasus Ave., Northvale, New Jersey 07647 (Address of Principal Executive Offices) Registrant's Telephone Number, including area code: (201) 767-6040 Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days: YES [X] NO [ ] Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).YES [X] NO [ ] Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Large accelerated filer [ ]Accelerated filer [ ] Non-accelerated filer [ ] (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 [ ] NO [X] State the number of shares outstanding of each of the Issuer's classes of common equity, as of the latest practicable date: 56,939,537 shares of Common Stock, $.0005 par value, as of August 20, 2012. 1 ADM TRONICS UNLIMITED, INC. INDEX Page Number PART I. FINANCIAL INFORMATION Item 1. Consolidated Financial Statements: Condensed Consolidated Balance Sheets – June 30, 2012 (unaudited) and March 31, 2012 3 Condensed Consolidated Statements of Operations – For the three months ended June 30, 2012 and 2011 (unaudited) 4 Condensed Consolidated Statements of Cash Flows – For the three months ended June 30, 2012 and 2011 (unaudited) 5 Notes to Condensed Consolidated Financial Statements (unaudited) 6 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 14 ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK 17 ITEM 4. CONTROLS AND PROCEDURES 17 PART II. OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS 18 ITEM 1A. RISK FACTORS 18 ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS 18 ITEM 3. DEFAULTS UPON SENIOR SECURITIES 18 ITEM 4. OTHER INFORMATION 18 ITEM 5. EXHIBITS 18 2 PART I. FINANCIAL INFORMATION ITEM 1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS ADM TRONICS UNLIMITED, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS June 30, March 31, (Unaudited) ASSETS Current assets: Cash and cash equivalents $ $ Accounts receivable, net of allowance for doubtful accounts of $500 and $329, respectively Inventories Prepaid expenses and other current assets Restricted cash Total current assets Property and equipment, net of accumulated depreciation of $57,413 and $53,574, respectively Inventories - long-term portion Secured convertible note receivable Advances to related parties Intangible assets, net of accumulated amortization of $105,246 and $101,682, respectively Other assets Total other assets Total assets $ $ LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Note payable - bank $ $ Accounts payable Customer deposit - Accrued expenses and other current liabilities Total current liabilities Total liabilities Stockholders' equity: Preferred stock, $.01 par value; 5,000,000 shares authorized, no shares issued and outstanding - - Common stock, $.0005 par value; 150,000,000 shares authorized, 56,939,537 shares issued and outstanding at June 30, 2012 and March 31, 2012 Additional paid-in capital Accumulated deficit ) ) Total stockholders' equity Total liabilities and stockholders' equity $ $ The accompanying notes are an integral part of these condensed consolidated financial statements. 3 ADM TRONICS UNLIMITED, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS FOR THE THREE MONTHS ENDEDJUNE 30, 2 (Unaudited) Net revenues $ $ Cost of sales Gross Profit Operating expenses: Research and development Selling, general and administrative Depreciation and amortization Total operating expenses Loss from operations ) ) Other income (expense): Interest income Interest expense ) ) Total other income (expense) ) Net loss $ ) $ ) Basic and diluted net loss per common share: $ ) $ ) Weighted average shares of common stock outstanding - basic and diluted The accompanying notes are an integral part of these condensed consolidated financial statements. 4 ADM TRONICS UNLIMITED, INC. AND SUBSIDIARIES CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS FOR THE THREE MONTHS ENDEDJUNE 30, 2 (Unaudited) Cash flows from operating activities: Net loss $ ) $ ) Adjustments to reconcile net loss to net cash provided by (used in) operating activities: Depreciation and amortization Interest receivable ) ) Bad debt expense - Increase (decrease) in cash flows as a result of changes in assets and liabilities balances: Accounts receivable ) Inventory ) ) Prepaid expenses and other current assets ) ) Accounts payable Customer deposit ) - Accrued expenses and other current liabilities Net cash used in operating activities ) ) Cash flows from investing activities: Collections from secured convertible note - Payment for patents and trademark costs - ) Restricted cash ) ) Net cash provided by (used in) investing activities ) Cash flows from financing activities: Repayments on note payable - Bank ) ) Repayments on note payable - Other - ) Net cash used in financing activities ) ) Net decrease in cash ) ) Cash and cash equivalents beginning of year Cash and cash equivalents at end of year $ $ Cash paid for: Interest $ $ Income taxes $

EXHIBIT 10.1 EMPLOYMENT AGREEMENT                  THIS AGREEMENT, effective March 1, 2010 by and between WEIS MARKETS, INC., a Pennsylvania corporation (the "Company"), and David J. Hepfinger (the "Executive").             WITNESSETH THAT:                  WHEREAS, the Executive has served as President and Chief Executive Officer of the Company pursuant to an Employment Agreement dated March 1, 2008 between the parties hereto (the "Prior Agreement"), and the Executive desires to be employed to serve in such capacity or capacities as Board of Directors of the Company (the "Board"), the Chairman of the Board (the "Chairman") or the Vice Chairman of the Board (the "Vice Chairman") may from time to time determine, on the terms and conditions herein set forth;                  NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto, each      1.     Employment; Prior Agreement. The Company agrees to employ the Executive, and the Executive agrees to be employed by the Company, for the Term provided in Section 3(a) below and upon the other terms and conditions hereinafter provided. The Executive hereby represents and warrants that he has the legal capacity to execute and perform this Agreement, that it is a valid and binding agreement, enforceable against him according to its terms, and that its execution and performance by him do not violate the terms of any existing agreement or understanding to which the Executive is a party.                         The parties hereto agree that each of (i) the Prior Agreement and (ii) the related offer letter dated February 25, 2008 from the Company to the Executive (and signed by the Executive on February 27, 2008) (the "Offer Letter") is hereby terminated and the Executive is no longer entitled to any benefits thereunder. For the avoidance of doubt, this means that, among other things, the "Supplemental Incentive Bonus Arrangement" set forth in a one page document signed by the Executive on February 28, 2008, which was part of the Offer Letter and which was referred to in Section 4(b) of the Prior Agreement, is terminated and Executive is no longer entitled to receive benefits thereunder, effective January 1, 2010.                  2.     Position and Responsibilities. During the Term, the Executive agrees to serve as President and Chief Executive Officer of the Company or in such other executive capacity or capacities for the Company and/or any of its subsidiaries or affiliated companies as the Board, the Chairman or the Vice Chairman may from time to time determine. The Executive also agrees to serve, if elected and without additional compensation, as a member of the Board and/or as an officer and director of any other parent, subsidiary or affiliate of the Company.                  3.     Term and Duties.               (a) Term of Agreement. The term of the Executive's employment under this Agreement shall commence on March 1, 2010 and shall continue thereafter through February 28, 2013 (the "Term").               (b) Duties. During the Term, and except for illness or incapacity and reasonable vacation periods of not less than four weeks in any calendar year (or such greater periods as shall be consistent with the Company's policies for other key executives), the Executive shall devote all of his business time, attention, skill and efforts exclusively to the business and affairs of the Company and its subsidiaries and affiliates, shall not be engaged in any other business activity, and shall perform and discharge well and faithfully the duties which may be assigned to him from time to time by the Board, the Chairman or the Vice Chairman; provided, however, that nothing in this Agreement shall preclude the Executive from devoting time during reasonable periods required for:                 (i) Delivering lectures and fulfilling speaking engagements;                 (ii) Engaging in charitable and community activities; and                 (iii) Investing his personal assets in businesses in which his participation is solely that of an investor in such form or manner as will not violate Section 7 below or require any services on the part of the Executive in the operation or the affairs of such business, provided, however, that such activities do not materially affect or interfere with the performance of the Executive's duties and obligations to the Company.                  4.     Compensation. For all services rendered by the Executive in any capacity required hereunder during the Term, including, without limitation, services as an executive officer, director, or member of any committee of the Company or any subsidiary, affiliate or division thereof, the Executive shall be compensated as set forth below:               (a) Base Salary. The Executive shall be paid a fixed salary ("Base Salary") of $750,000 per annum as of the effective date of this Agreement. The Base Salary amount is subject to periodic review and adjustment by the Board or its Executive Compensation Committee but shall not be less than $750,000 per annum during the Term of this Agreement. Base Salary shall be payable in accordance with the customary payroll practices of the Company, but in no event less frequently than monthly.               (b) Bonus. The Executive shall be eligible to participate in such annual or long-term bonus or incentive plans maintained by the Company for its senior executives, as determined from time to time by the Board or its Executive Compensation Committee. The basis for the Executive's participation shall be the same as for other similarly situated executives, and it is understood that awards under any such plan may be discretionary.               (c) CEO Supplemental Cash Incentive. The Executive may earn a supplemental cash incentive under the Company's CEO Incentive Award Plan (the "Plan") effective January 1, 2010, as amended from time to time by the Board. The supplemental cash incentive is contingent upon the Executive's continued employment with the Company for the period set forth in the Plan. Notwithstanding the date of this Agreement, the Executive shall be entitled to earn a supplemental cash incentive as set forth in and determined by the Plan, based on the results of the Company for the entire of 2010 fiscal year.               (d) Equity-Based Compensation. The Executive shall be eligible to participate in, and to be granted stock options, stock appreciation rights or other equity-based awards under any stock option, stock ownership, stock incentive or other equity-based compensations plans maintained by the Company for its senior executives, as determined from time to time by the Board or its Executive Compensation Committee. The basis for the Executive's participation shall be the same as for other similarly situated executives, and it is understood that awards under any such plan may be discretionary.               (e) Additional Benefits. Except as modified by this Agreement, as determined from time to time by the Board or its Executive Compensation Committee, the Executive shall be entitled to participate in all compensation or employee benefit plans or programs, and to receive all benefits, perquisites and emoluments, for which any member of senior management at the Company is eligible under any plan or program now or hereafter established and maintained by the Company for senior officers, to the extent permissible under the general terms and provisions of such plans or programs and in accordance with the provisions thereof, including group hospitalization, health, dental care, senior executive life or other life insurance, travel or accident insurance, disability plans, tax-qualified or non-qualified pension, savings, thrift and profit-sharing plans, sick-leave plans, and executive contingent compensation plans, including, without limitation, capital accumulation programs and stock purchase plans. Notwithstanding the foregoing, the Executive acknowledges and agrees that the severance payments provided in certain circumstances under this Agreement are in lieu of any rights which the Executive might otherwise have under any and all other displacement, separation or severance plans or programs of the Company, and the Executive hereby waives all rights to participate in any of such plans or programs in the event of the termination of his employment during the Term.               (f) Life Insurance. The Company shall provide a term life insurance policy to the Executive insuring the life of the Executive with a death benefit of $1,000,000. The Executive shall be required to provide any reasonable information or testing as may be necessary to obtain such policy.               (g) Recoupment Policy (Clawback). Incentive based awards under this Agreement (including under Sections 4 (b), (c), and (d)) may be cancelled without payment and/or a demand for repayment of any incentive based awards may be made upon Executive pursuant to the provisions set forth below. If the Board or a committee of the Board determines that the Executive has been incompetent or negligent in the performance of his or her duties or has engaged in fraud or willful misconduct, in each case in a manner that has caused or otherwise contributed to the need for a material restatement of the Company's financial results, the Board will review all performance-based compensation awarded to or earned by the Executive on the basis of performance during fiscal periods affected by the restatement. If, in the Board's view, the performance-based compensation would have been lower if it had been based on the restated results, the Board and the Company will, to the extent permitted by applicable law, seek recoupment from the Executive of any portion of such performance-based compensation as it deems appropriate after a review of all relevant facts and circumstances. Generally, this review would include consideration of:                 *   the Board's view of what performance-based compensation would have been awarded to or earned by the Executive had the financial statements been properly reported;     *   the nature of the events that led to the restatement;     *   the conduct of the Executive in connection with the events that led to the restatement;     *   whether the assertion of a claim against the Executive could prejudice the Company's overall interests and whether other penalties or punishments are being imposed on the Executive, including by third parties such as regulators or other authorities; and     *   any other facts and circumstances that the Executive deems relevant.                  5.     Business Expenses. The Company shall pay or reimburse the Executive for all reasonable travel and other expenses incurred by the Executive (and his spouse where there is a legitimate business reason for his spouse to accompany him) in connection with the performance of his duties and obligations under this Agreement, subject to the Executive's presentation of appropriate vouchers in accordance with such policies and procedures as the Company from time to time establish for senior officers.                  6.     Effect of Termination of Employment; Effect of Disability.               (a) Without Cause Termination or Termination of the Executive for Good Reason. Subject to the provisions of Section 7 below, in the event the Executive's employment hereunder terminates due to either a Without Cause Termination (as defined in Section 6(e)(iii) or a termination by the Executive for Good Reason (as defined in Section 6(e)(ii)):                 (i) Earned but unpaid Base Salary as of the Date of Termination (as defined in Section 13(b)) and any earned but unpaid bonuses for prior years under Section 4(b) (but not under Section 4(c)) (collectively, the "Accrued Obligations"), shall be payable in full, and the Company shall, as liquidated damages or severance pay, or both:                   (A) Continue to pay the Executive's Base Salary, as in effect at the Date of Termination, from the Date of Termination until the end of the Term, at the same time Base Salary would otherwise be payable hereunder, and                   (B) Pay to the Executive for the year of termination and for each subsequent calendar year or portion thereof during the remainder of the Term, an amount (prorated in the case of any partial year) equal to the highest annual incentive bonus under Section 4(b) (but not under Section 4(c)) received by the Executive for any year in the two years preceding the Date of Termination, such payments to be made at the normal times for payment of bonuses under the Company's annual incentive bonus plan (as described in Section 4(b)) as in effect at the Date of Termination (the "Bonus Plan").                 With respect to the payments provided for in this Section 6(a)(i), the Executive shall be entitled, to the extent permitted by law as determined by the Company in good faith, to participate in any compensation deferral plans or arrangements then provided by the Company to senior executives on the same basis as if he had remained an employee through the end of the Term.               (b) Disability. In the event of the Executive's Disability, the Company may, by giving a Notice of Disability as provided in Section 13(c), remove the Executive from active employment and in that event shall provide the Executive with the same payments and benefits as those provided in Section 6(a), except that:                 (i) Base Salary payments under Section 6(a)(i)(A) shall be at the rate 50% of the Executive's Base Salary as in effect at the Date of Disability;                 (ii) In lieu of the bonus payments provided in Section 6(a)(i)(B), the Executive shall receive, at the same time as bonus payments for the year of Disability would otherwise be made under the Bonus Plan, a prorated bonus for the year of Disability only equal to the amount determined by the Company in good faith (which determination shall be final and conclusive) to be the amount of the bonus award the Executive would have received if he had been employed throughout the bonus year, prorated on a daily basis as of the Date of Disability; and                 (iii) Except for Accrued Obligations, Base Salary payments shall be offset by any amounts otherwise payable to the Executive under the Company's disability program generally available to other employees.               (c) Death. In the event the Executive's employment hereunder terminates due to death:                 (i) Accrued Obligations as of the date of death shall be payable in full;                 (ii) From the date of the Executive's death until the end of the Term, the Company shall, at the same times Base Salary would otherwise be payable hereunder, make payments at the rate of 50% of the Executive's Base Salary in effect at the date of death to (A) the Executive's spouse at the date of his death, should she survive him and (B) following the death of the Executive's spouse or should she not survive him, to the Executive's estate.               (d) Other Termination of Employment. In the event the Executive's employment hereunder terminates due to a Termination for Cause or the Executive terminates employment with the Company other than for Good Reason, Disability, retirement under established retirement policies of the Company, or death, Accrued Obligations and vested benefits as of the Date of Termination shall be payable in full. No other payments shall be made, or benefits provided, by the Company except for benefits which have already become vested under the terms of employee benefit programs maintained by the Company or its affiliates for its employees generally as provided in Section 10. The foregoing is not intended to limit the remedies available to the Company under this Agreement.               (e) Definitions. For purposes of this Agreement, the following terms, when capitalized, shall have the following meanings unless the context otherwise requires:                 (i) "Termination for Cause" means, to the maximum extent permitted by applicable law, a termination of the Executive's employment by the Company by a vote of the majority of the Board members then in office, because the Executive (a) has been convicted of, or has entered a plea of nolo contendere to, a criminal offense involving moral turpitude, or (b) has willfully continued to fail to substantially perform his duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness or any such failure subsequent to the Executive being delivered a Notice of Termination without Cause by the Company or delivering a Notice of Termination for Good Reason to the Company) after a written demand for substantial performance is delivered to the Executive by the Board which specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties or (c) has committed an improper action resulting in personal enrichment at the expense of the Company or (d) has engaged in illegal or gross misconduct that is materially and demonstrably injurious to the Company, or (e) has violated the representations made in Section 1 above, or the provisions of Section 7 below; provided, however that the Board has given the Executive advance notice of such Termination for Cause including the reasons therefor, together with a reasonable opportunity for the Executive to appear with counsel before the Board and to reply to such notice.                 (ii) a "Termination by the Executive for 'Good Reason'" shall mean a termination of his employment by the Executive by a Notice of Termination given at any time due to:                   (A) any reduction without the consent of the Executive in the Executive's salary below the amount then provided for under Section 4(a) hereof; or                   (B) failure of the Company or its successor to fulfill its obligations under this Agreement in any material respect.                   An isolated, insubstantial and inadvertent action taken in good faith and which is remedied by the Company within 10 days after receipt of notice thereof given by the Executive shall not constitute Good Reason. The Executive's right to terminate employment for Good Reason shall not be affected by the Executive's incapacities due to mental or physical illness and the Executive's continued employment shall not constitute consent to, or a waiver of rights with respect to, any event or condition constituting Good Reason; provided, however, that the Executive must provide notice of termination of employment within 180 days following the Executive's knowledge of an event constituting Good Reason or such event shall not constitute Good Reason under this Agreement.                 (iii) "Without Cause Termination" means a termination of the Executive's employment by the Company other than due to Disability or expiration of the Term and other than a Termination for Cause.                 (iv) "Disability" for purposes of this Agreement means the Executive shall be disabled so as to be unable to perform for 180 days in any 365-day period, with or without reasonable accommodation, the essential functions of his positions wider this Agreement, as determined by the Executive or his representative.                 (v) The "Date of Termination" and "Date of Disability" shall have the meanings ascribed to them in Section 13. To the fullest extent permitted by applicable law, to the extent this Agreement requires the payment of Base Salary and/or the provision of coverages and benefits subsequent to the Date of Termination or Date of Disability, the Executive's Date of Termination or Date of Disability, as applicable, shall not be treated as a termination of employment (a "Benefit Plan Termination Date") from the Company for purposes of determining the Executive's rights, responsibilities and tax treatment under any and all employee pension, welfare and fringe benefit plans maintained by the Company. Rather, the Benefit Plan Termination Date shall be the day following the last day for which any Base Salary and/or coverages and benefits are required to be provided by this After Term.               (a) Confidential Information. The Executive recognizes and acknowledges that certain information pertaining to the affairs, business, suppliers, or customers of the Company or any of its subsidiaries of affiliates (any or all of such entities hereinafter referred to as the "Business"), as such information may exist from time to time, is confidential information and is a unique and valuable asset of the Business, access to and knowledge of which are essential to the performance of his duties under this Agreement. The Executive shall not, through the end of the Term or at any time thereafter, except to the extent reasonably necessary in the performance of his duties under this Agreement, divulge to any person, firm, association, corporation or governmental agency, any information concerning the affairs, business, suppliers, or customers of the Business (except such information as is required by law to be divulged to a governmental agency or pursuant to lawful process or such information which is or shall become part of the public realm through no fault of the Executive), or make use of any such information for his own purposes or for the benefit of any person, firm, association or corporation (except the Business) and shall use his reasonable best efforts to prevent the disclosure of any such information by others. All records and documents relating to the Business, whether made by the Executive or otherwise coming into his possession are, shall be, and shall remain the property of the Business. No copies thereof shall be made which are not retained by the Business, and the Executive agrees, on any termination of his employment, or on demand of the Company, to deliver the same to the Company.               (b) Non-Competition. During his employment by the Company, whether during or after the Term, and for a period of four years following the termination of his employment for any reason except for a Without Cause Termination or termination by the Executive for Good Reason, the Executive shall not, without express prior written approval by order of the Board, directly or indirectly, engage in, whether as an officer, director, employee, consultant, agent, partner, joint venture, proprietor or otherwise, become interested in (other than as a shareholder owning not more than 1% of the outstanding shares of any class of securities registered under Section 12 of the Securities Exchange Act of 1934) or assist any business which (i) is in competition with the Company or any of its affiliates in the retail grocery business or (A) during his employment, in any other business in which the Company or any of its subsidiaries is then engaged or proposes to engage or (B) following the termination of his employment, in any other business which during the 12 months preceding the Executive's Date of Termination accounted for more than 2% of the Company's consolidated revenues and (ii) engages in any such business in any county in which the Company then engages in such business or any county contiguous thereto.               (c) Non-Interference. During his employment with the Company and until four years after the termination of the Executive's employment, whether during or after the Term and notwithstanding the cause of termination, the Executive shall not (i) hire or employ, directly or indirectly through any enterprise with which he is associated, any employee of the Company or any of its affiliates or (ii) recruit, solicit or induce (or in any way assist another person or enterprise in recruiting, soliciting or inducing) any such employee or any consultant, vendor or supplier of the Company or any of its affiliates to terminate or reduce such person's employment, consulting or other relationship with the Company or any of its affiliates.               (d) Remedies. The Company's obligation to make payments or provide for or increase any benefits under this Agreement (except to the extent previously vested) shall cease upon any violation of the provisions of this Section 7: provided, however, that the Executive shall first have the right to appear before the Board with counsel and that such cessation of payments or benefits shall require a vote of a majority of the Board members then in office. In addition, in the event of a violation by the Executive of the provisions of this Section 7, the Company shall be entitled, if it shall so elect, to institute legal proceedings to obtain damages for any such breach, and/or to enforce the specific performance by the Executive of this Section 7 and to enjoin the Executive from any further violation, and may exercise such remedies cumulatively or in conjunction with such other remedies as may be available to the Company at law or in equity. The Executive acknowledges, however, that the remedies at law for any breach by him of the provisions of this Section 7 would be inadequate and agrees that the Company shall be entitled to injunctive relief against him in the event of any such breach.               (e) Survival; Authorization to Modify Restrictions. The covenants of the Executive contained in this Section 7 shall survive any termination of the Executive's employment for the periods stated herein, whether during or after the Term and, except as otherwise provided in this Section 7, regardless of the reason for such termination. The Executive represents that his experience and capabilities are such that the enforcement of the provisions of this Section 7 will not prevent him from earning his livelihood, and acknowledges that it would cause the Company serious and irreparable injury and cost if the Executive were to use his ability and knowledge in competition with the Company or to otherwise breach the obligations contained in this Section 7. Accordingly, it is the intention of the parties that the provisions of this Section 7 shall be enforceable to the fullest extent permissible under applicable law, but that the unenforceability (or modification to conform to such law) of any provision or provisions hereof shall not render unenforceable, or impair, the remainder thereof. If any provision or provisions hereof shall be deemed invalid or unenforceable, either in whole or in part, this Agreement shall be deemed amended to delete or modify, as necessary, the offending provision or provisions and to alter the bounds thereof to the extent required in order to render it valid and enforceable.                  8.     Resolution of Disputes. Except as otherwise provided in Section 7(d) hereof, any dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Sunbury, Pennsylvania, by three arbitrators in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrators' award in any court having jurisdiction. In the event of any arbitration, litigation or other proceeding between the Company and the Executive with respect to the subject matter of this Agreement and the enforcement of rights hereunder, the Company shall reimburse the Executive for his reasonable costs and expenses relating to such arbitration, litigation or other proceeding, including attorneys' fees and expenses, to the extent that such arbitration, litigation or other proceeding results in any: (i) settlement requiring the Company to make a payment, continue to make payments or provide any other benefit to the Executive; or (ii) judgment, order or award against the Company in favor of the Executive or his spouse, legal representative or heirs, unless such judgment, order or award is subsequently reversed on appeal or in a collateral proceeding. At the request of the Executive, costs and expenses (including attorneys' fees) incurred in connection with any arbitration, litigation or other proceeding referred to in this Section shall be paid by the Company in advance of the final disposition of the arbitration, litigation or other proceeding upon receipt of an undertaking by or on behalf of the Executive to repay the amounts advanced if it is ultimately determined that he is not entitled to reimbursement of such costs and expenses by the Company a set forth in this Section.                  9.     Full Settlement; No Mitigation; Non-Exclusivity of Benefits. The Company's obligation to make any payment provided for in this Agreement and otherwise to perform its obligations hereunder shall be in lieu and in full settlement of all other severance payments to the Executive under any other severance plan, arrangement or agreement of the Company and its affiliates, and in full settlement of any and all claims or rights of the Executive for severance, separation and/or salary continuation payments resulting from the termination of his employment. In no event shall the Executive be obligated to seek other employment or to take other action by way of mitigation of the amounts payable to the Executive under any of the provisions of this Agreement, and except as specifically provided herein, such amounts shall not be reduced whether or not the Executive obtains other employment. Except as provided above in this Section 9, nothing in this Agreement shall prevent or limit the Executive's continuing or future participation in any plan, program policy or practice provided by the Company or any of its affiliates for which the Executive may qualify, nor except as otherwise specifically provided in this Agreement, shall anything herein limit or otherwise affect such rights as the Executive may have under any contract or agreement with the Company or any of its affiliates, including without limitation any stock option agreement. Amounts or benefits which are vested benefits or which the Executive is otherwise entitled to receive under any such plan, program, policy, practice, contract or agreement prior to, at or subsequent to any Date of Termination or Date of Disability shall be paid or provided in accordance with the terms of such plan, program policy, practice, contract or agreement except as explicitly modified by this Agreement.                  10.     Employment and Payments by Affiliates. Except as herein otherwise specifically provided, references in this Agreement to employment by the Company shall include employment by affiliates of the Company, and the obligation of the Company to make any payment or provide any benefit to the Executive hereunder shall be deemed satisfied to the extent that such payment is made or such benefit is provided by any affiliate of the Company.                  11.     Withholding Taxes. The Company may directly or indirectly withhold from any payments made under this Agreement all Federal, state, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.                  12.     Consolidation, Merger, or Sale of Assets. Nothing in this Agreement shall preclude the Company from consolidating or merging into or with, or transferring all or substantially all of its assets to, another corporation or entity which assumes this Agreement and all obligations and undertakings of the Company hereunder. Upon such a consolidation, merger or transfer of assets and assumption, the term, "Company" as used herein shall mean such other corporation or entity, and this Agreement shall continue in full force and effect.                  13.     Notices.               (a) General. All notices, requests, demands and other communications required or permitted hereunder shall be given in writing and shall be deemed to have been duly given when delivered or 5 days after being deposited in the United States mail, certified and return receipt requested, postage prepaid, addressed as follows:                 (i) To the Company:                   Weis Markets, Inc.       1000 S. Second Street       P.O. Box 471       Sunbury, PA 17801                   Attention: Jonathan H. Weis                 (ii) To the Executive:                   David J. Hepfinger       1000 S. Second Street       P.O. Box 471       Sunbury, PA 17801             Or to such other address as the addressee party shall have previously specified in writing to the other.               (b) Notice of Termination. Except in the case of death of the Executive, any termination of the Executive's employment hereunder, whether by the Executive or the Company, shall be effected only by a written notice given to the other party in accordance with this Section 13 (a "Notice of Termination"). Any Notice of Termination shall (i) indicate the specific termination provision in Section 6 relied upon, (ii) in the case of a termination by the Company for Cause or by the Executive for Good Reason, set forth in reasonable detail the facts and circumstances claimed to provide a basis for such termination and (iii) specify the effective date of such termination of employment (the "Date of Termination"), which shall not be less than 15 days nor more than 60 days after such notice is given. The failure of the Executive or the Company to set forth in any Notice of Termination any fact or circumstance which contributes to a showing of Cause or Good Reason shall not waive any right of the Executive or the Company hereunder or preclude the Executive or the Company from asserting such fact or circumstance in enforcing the Executive's or the Company's rights hereunder.               (c) Notice of Disability. Any finding of Disability by the Company shall be affected only by a written notice given to the Executive in accordance with this Section 13 (a "Notice of Disability"). Any Notice of Disability shall (i) set forth in reasonable detail the facts and circumstances claimed to provide a basis for such finding of Disability and (ii) specify an effective date (the "Date of Disability''), which shall not be less than 10 days after such notice is given. The failure of the Company to set forth in any Notice of Disability any fact or circumstance which contributes to a showing of Disability shall not waive any right of the Company hereunder or preclude the Company from asserting such fact or circumstance in enforcing the Company's rights hereunder.                  14.     Source of Payments. Subject to Section 10 hereof, all payments provided for under this Agreement shall be paid in cash from the general funds of the Company. The Company shall not be required to establish a special or separate fund or other segregation of assets to assure such payments, and, if the Company shall make any investments to aid it in meeting its obligations hereunder, the Executive shall have no right, title or interest whatever in or to any such investments except as may otherwise be expressly provided in a separate written instrument relating to such investments. 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 Company and the Executive or any other person. To the extent that any person acquires a right to receive payments from the Company, hereunder, such right shall be no greater than the right of an unsecured creditor.                  15.     Binding Agreement. This Agreement shall be binding upon, and shall inure to the benefit of, the Executive and the Company and, as permitted by this Agreement, their respective successors, assigns, heirs, beneficiaries and representatives.                  16.     Governing Law. The validity, interpretation, performance and enforcement of this Agreement shall be governed exclusively by the laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of laws thereof.                  17.     Counterparts; Headings. This Agreement may be executed in counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. The underlined Section headings contained in this Agreement are for convenience of reference only and shall not affect the interpretation or construction of any provision hereof.             IN WITNESS THEREOF, The Company has caused this Agreement to be executed by its Officer thereunto duly authorized, and the Executive has signed this Agreement, all of this date first above.                       WEIS MARKETS, INC.                       By: /s/ Robert E. Weis                       Robert E. Weis                       Chairman                       /s/ David J. Hepfinger           David J. Hepfinger                                                                                                                                                 

Exhibit 10.138   AMENDED AND RESTATED SERIES B PROMISSORY NOTE   $                        March 17, 2004   FOR VALUE RECEIVED, the undersigned FOR VALUE RECEIVED, the undersigned [i] THERMOVIEW INDUSTRIES, INC., a Delaware corporation (“ThermoView”), [ii] AMERICAN HOME DEVELOPERS CO., INC., a California corporation (“American Home”), [iii] FIVE STAR BUILDERS, INC., a California corporation (“Five Star”), [iv] KEY HOME CREDIT, INC.,  a Delaware corporation (“Key Home”), [v] KEY HOME MORTGAGE, INC., a Delaware corporation (“Key Home Mortgage”), [vi] LEINGANG SIDING AND WINDOW, INC., a North Dakota business corporation (“Leingang Siding”),  [vii] PRECISION WINDOW MFG., INC., a Missouri corporation (“Precision”), [viii] PRIMAX WINDOW CO., a Kentucky corporation (“Primax”), [ix] ROLOX, INC., a Kansas corporation (“Rolox”), [x] TD WINDOWS, INC., a Kentucky corporation (“TD Windows”), [xi] THERMAL LINE WINDOWS, INC., a North Dakota corporation (“Thermal Line”), [xii] THERMOVIEW OF MISSOURI, INC., a Missouri corporation (“ThermoView-Missouri”), [xiii] THERMO-TILT WINDOW COMPANY, a Delaware corporation (“Thermo-Tilt”), [xiv] THERMO-SHIELD OF AMERICA (ARIZONA), INC., an Arizona corporation (“Thermo-Shield Arizona”), [xv] THERMO-SHIELD OF AMERICA (MICHIGAN), INC., a Michigan corporation (“Thermo-Shield Michigan”), [xvi] THERMO-SHIELD COMPANY, LLC, an Illinois limited liability company (“Thermo-Shield Company”), [xvii] THERMO-SHIELD OF AMERICA (WISCONSIN), LLC, a Wisconsin limited liability company (“Thermo-Shield Wisconsin”), [xviii] THERMOVIEW ADVERTISING GROUP, INC., a Delaware corporation (“ThermoView Advertising”) and [xix] THOMAS CONSTRUCTION, INC., a Missouri corporation (“Thomas Construction”), (ThermoView, American Home, Five Star, Key Home, Key Home Mortgage, Leingang Siding, Precision, Primax, Rolox, TD Windows, Thermal Line, ThermoView-Missouri, Thermo-Tilt, Thermo-Shield Arizona, Thermo-Shield Michigan, Thermo-Shield Company, Thermo-Shield Wisconsin, ThermoView Advertising and Thomas Construction individually are referred to in this Agreement as a “Borrower” and collectively as the “Borrowers”) having an address in care of ThermoView Industries, Inc., 5611 Fern Valley Road, Louisville, Kentucky 40228, hereby promises and agrees to pay to the order of                             (the “Series B Lender”), having an address of c/o Thermoview Industries, P.O. Box 34749, Louisville, Kentucky 40228, the aggregate principal sum of                             DOLLARS ($                  ), or so much thereof as may be advanced hereunder, together with interest thereon as hereinafter provided, in lawful money of the United States of America, in the manner set forth herein, on or before the Loan Expiration Date as that term is defined in   1.             Other Loan Documents. This Series B Note is issued in connection with a Loan Agreement dated August 31, 1998, as amended, to which the Borrowers, the Series A Lender, the Series B Lenders and the Series C Lender (as defined therein) are parties, (the “Loan Agreement”) the terms of which are incorporated herein by reference and other documents executed and delivered in connection therewith (the “Loan Documents”; terms not otherwise defined herein are used herein as therein defined in the Loan Documents), and is secured by the property described in the Loan Documents and by such other collateral as previously may have been or may in the future be granted to the Series B Lender (or the Collateral Agent for the Lenders) to secure this Series B Note.   1   2.             Rate of Interest.  This Series B Note will bear interest at a rate per annum (computed on the basis of a year of 360 days and the actual number of days elapsed) equal to ten percent (10%).   3.             Payment Terms.  Principal of this Series B Note shall be paid in monthly payments of $                and shall be payable on the last day of each calendar month commencing on November 30, 2004.  The balance of the principal shall be paid in a single payment on the Loan Expiration Date.   Interest on this Series B Note shall be payable on the last day of each calendar month and on any and each date that the principal of this Series B Note is paid in full, and on the Loan Expiration Date.  Notwithstanding anything else herein to the contrary, (i) during the period commencing on December 1, 2003 and through and including September 30, 2004 (the “PIK Period”) any interest not paid by the Borrowers in cash on the date such interest is due shall be paid-in-kind and added to the principal amount outstanding under this Series B Note on the date such interest shall be payable only in cash pursuant to the terms of this Series B Note and (ii) from October 1, 2004 and thereafter any and all interest shall be payable only in cash.  All increased principal amounts outstanding under this Series B Note as a result of the foregoing sentence shall bear interest from the date of such increase at the interest rate provided for herein.  The Borrowers hereby acknowledge and agree that the paid-in-kind interest which has accrued during the PIK Period prior to the date hereof is not reflected in the stated principal amount of this Series B Note indicated in the introductory paragraph or otherwise herein.   If any payment under this Series B Note shall become due on a Saturday, Sunday or public holiday under the laws of the State where the Series B Lender’s office indicated above is located, such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing interest in connection with such payment. The Borrowers hereby authorize the Series B Lender to charge any Borrower’s deposit account at the Series B Lender for any payment when due hereunder. Payments received will be applied to charges, fees and expenses (including attorneys’ fees), accrued interest and principal in any order the Series B Lender may choose, in its sole discretion.  “Business Day” shall mean any day other than a Saturday or Sunday or a legal holiday on which banks are authorized or required to be closed for business in New York, New York.   4.             Late Payments; Default Rate.  If the Borrowers fail to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Series B Note within ten (10) calendar days of the date due and payable, the Borrowers also shall pay to the Series B Lender a late charge equal to the lesser of two percent (2%) of the amount of such payment or $25.00. Such ten day period shall not be construed in any way to extend the due date of any such payment. The late charge is imposed for the purpose of defraying the Series B Lender’s expenses incident to the handling of delinquent payments and is in addition to, and not in lieu of, the exercise by the Series B Lender of any rights and remedies hereunder, under the other Loan Documents or under applicable laws, and any fees and expenses of any agents or attorneys which the Series B Lender may employ. Upon maturity, whether by acceleration, demand or otherwise, and at the option of the Series B Lender upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, this Series B Note shall bear interest at a rate per annum (based on a year of 360 days and actual days elapsed) which shall be two percentage points (2%) in excess of the interest rate in effect   2   from time to time under this Series B Note but not more than the maximum rate allowed by law (the “Default Rate”). The Default Rate shall continue to apply whether or not judgment shall be entered on this Series B Note.   5.             Prepayment.  Principal of this Series B Note may be repaid or prepaid in whole or in part without penalty or premium at any time, but only in the amount of $10,000.00, or integral multiples thereof, or an amount equal to the entire unpaid principal balance of this Series B Note, and only provided Borrowers have given to the Series B Lenders not less than three (3) Business Days prior written notice of such prepayment.  On July 31 and November 15 of each calendar year, the Borrowers shall prepay this Series B Note in an amount outstanding equal to 100% of the Borrowers’ cash, cash equivalents and marketable securities balance on its balance sheet which, collectively, is in excess of $1,000,000 as of June 30 or October 15, as applicable, of that year.  Upon termination of that certain Amended and Restated Reimbursement Agreement dated as of March 17, 2004 among GE Capital Equity Investments, Inc. and the Borrowers (the “Reimbursement Agreement”) and fulfillment by the Borrowers of all of their obligations thereunder, any remaining balance in the Cash Account (as defined in the Reimbursement Agreement) shall be used to prepay this Series B Note.  Subject to the provisions of Section 8 hereof, any prepayment of this Series B Note and any prepayments in respect of the second and third sentences of this Section 5 shall be applied in the following order: (i) then due and payable fees and expenses; (ii) then due and payable interest and principal payments on the Reimbursement Obligations; (iii) then due and payable interest payments on the Series A Note, the Series B Notes and the Series C Note on a pro rata basis; (ivi) principal payments on the Series A Note and the Series B Notes on a pro rata basis; and (iv) principal payments on the Series C Note.  Any repayments or optional prepayments of this Series B Note at maturity, including in connection with a sale or merger of any Borrower or a sale of all or substantially all of the assets of any Borrower, shall be applied in the following order: (i) then due and payable fees and expenses; (ii) then due and payable interest and principal payments on the Reimbursement Obligations; (iii) then due and payable interest payments on the Series A Note, the Series B Notes and the Series C Note on a pro rata basis; (iv) principal payments on the Series A Note; (v) principal payments on the Series B Notes; and (vi) principal payments on the Series C Note.   6.             Events of Default.  The occurrence of any of the following events will be deemed to be an “Event of Default” under this Series B Note: (i) the nonpayment of any principal, interest or other indebtedness under this Series B Note or the Loan Agreement when due; (ii) the occurrence of any event of default or default and the lapse of any notice or cure period under any Loan Document, including but not limited to the Series A Notes and the Series C Note, or any other debt, liability or obligation to the Series B Lender of any Obligor; (iii) the filing by or against any Obligor of any proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation, conservatorship or similar proceeding (and, in the case of any such proceeding instituted against any Obligor, such proceeding is not dismissed or stayed within 30 days of the commencement thereof); (iv) any assignment by any Obligor for the benefit of creditors, or any levy, garnishment attachment or similar proceeding is instituted against any property or any Obligor held by or deposited with the Series B Lender; (v) a default with respect to any other indebtedness of any Obligor for borrowed money, if the effect of such default is to cause or permit the acceleration of such debt; (vi) the commencement of any foreclosure or forfeiture proceeding, execution or attachment against any collateral securing the obligations of any Obligor to   3   the Series A, B or C Lenders; (vii) the entry of a final judgment against any Obligor in excess of $100,000, which judgment has not been stayed, discharged or appealed within ten (10) Business Days of the date of entry thereof, (viii) the Borrower ceases doing business as a going concern; (ix) the revocation or attempted revocation, in whole or in part, of any guarantee for the benefit of the Series B Lender by any Guarantor; (x) any representation or warranty made by any Obligor to the Series B Lender in any Loan Document, or any other documents now or in the future securing the obligations of any Obligor to the Series B Lender, is false, erroneous or misleading in any material respect; (xi) the failure by Thermoview to perform or observe the financial covenant contained in Section 4.I of the Loan Agreement; or (xii) the occurrence of any Event of Default (as defined in any Loan Documents or any other documents now or in the future securing the obligations of any Obligor to the Series A, B or C Lenders) or any default under any of the Loan Documents or such other documents that does not have a defined set of “Events of Default” and the lapse of any notice or cure period provided in the Loan Documents or such other documents with respect to such default. As used herein, the term “Obligor” means any Borrower and any Guarantor, and the term “Guarantor” means any guarantor of the obligations of any Borrower to the Series B Lender existing on the date of this Series B Note or arising in the future.   Upon the occurrence and during the continuance of an Event of Default: (a) if an Event of Default specified in clauses (iii) or (iv) above shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder shall be immediately due and payable without demand or notice of any kind; (b) if an Event of Default specified in clauses (i), (vii) or (xi) above, or Section 6.E. or 6.F. of the Loan Agreement, or an Event of Default resulting from a breach of Section 5.G. of the Loan Agreement, shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite A Lenders or, if the Series A Note shall no longer be outstanding, the Requisite Lenders, and without demand or notice of any kind, may be accelerated and become immediately due and payable; (c) if an Event of Default specified in clause (v) shall occur in connection with the obligations under that certain Securities Purchase Agreement, dated as of July 8, 1999, between the Series A Lender and Thermoview, as amended from time to time, shall be accelerated as a result of a default thereunder pursuant to Sections 5.1(h) or 7.1(a) thereof, at the option of the Requisite A Lenders or, if the Series A Note shall no longer be outstanding, the Requisite C Lender, and without demand or notice of any kind, may be accelerated and become immediately due and payable; (d) if any other Event of Default shall occur and the same shall continue unremedied for a period of 30 days thereafter, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the option of the Requisite Lenders and without demand or notice of any kind, may be accelerated and become immediately due and payable; (e) at the option of the Requisite Lenders will bear interest at the Default Rate from the date of the occurrence of the Event of Default; and (f) the Series B Lender may exercise from time to time any of the rights and remedies available to the Series B Lender under the Loan Documents or under applicable law.   Notwithstanding anything contained in this Section 6, upon the filing of a bankruptcy of Thermoview, whether voluntary or involuntary, the Series A Lender shall have the right to file a proof of claim on the Series B Lenders’ behalf in respect of the Series B Note.   4   7.             Right of Setoff.  In addition to all liens upon and rights of setoff against the money, securities or other property of each Borrower given to the Series B Lender by law, the Series B Lender shall have, with respect to any Borrower’s obligations to the Series B Lender under this Series B Note and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and each Borrower hereby assigns, conveys, delivers, pledges and transfers to the Series B Lender all of each Borrower’s right, title and interest in and to, all deposits, moneys, securities and other property of such Borrower now or hereafter in the possession of or on deposit with, or in transit to, the Series B Lender whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, employee withholding accounts, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to any Borrower. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action of the Series B Lender, although the Series B Lender may enter such setoff on its books and records at a later time.   8.             Subordination, Priority and Payment Over Of Proceeds In Certain Events.   9.             The Borrowers and the Lenders and any other holder of a Note (the Lenders and such holders being hereinafter referred to collectively as “Holders”) covenant and agree that all payments of the principal of and interest in respect of the Series A Note, the Series B Notes and the Series C Note shall be subordinated in accordance with the provisions of this Section 8 to the prior payment in full of the Senior Debt.  For purposes of this Section 8, (x) the term “Senior Debt” shall mean, (i) with respect to the Series A Note, the Reimbursement Obligations, (ii) with respect to the Series B Notes, the Reimbursement Obligations and the Series A Note and (iii) with respect to the Series C Note, the Reimbursement Obligations, the Series A Note and the Series B Notes, and each of clauses (i),(ii) and (iii) above shall include principal of and premium, if any, and interest (including interest accruing at the rate (including at the default rate) provided for hereunder after the commencement of (A) any bankruptcy proceedings involving any Borrower or (B) proceedings involving any Borrower of the type referred to in clause (b) hereof, in each case, whether or not allowed as a claim against any Borrower in any such proceeding) on all loans and other extensions of credit under, and all expenses, fees, reimbursements, indemnities and other amounts owing pursuant to the Senior Debt, to the extent permitted to be incurred pursuant to the Loan Documents , and (y) the term “Subordinated Debt” shall mean, (i) with respect to the Reimbursement Obligations, the Series A Note, the Series B Notes and the Series C Note, (ii) with respect to the Series A Note, the Series B Notes and the Series C Note and (iii) with respect to the Series B Notes, the Series C Note.  The Borrowers and the Lenders further covenant and agree that all payments in respect of this Series B Note shall be subordinated in accordance with the provisions of this Section 8.   10.           Upon payment or distribution of assets or securities of the Borrowers of any kind or character, whether in cash, property or securities, upon any dissolution or winding up or total or partial liquidation or reorganization of the Borrowers, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings or upon an assignment for the benefit of creditors or any other marshalling of the   5   assets and liabilities of the Borrowers, the Senior Debt shall first be paid in full in cash, or payment provided for in cash or cash equivalents in a manner satisfactory to the Holder thereof, before any direct or indirect payments or distributions, including, without limitation, by exercise of set-off, of any cash, property or securities on account of principal of (or premium, if any) or interest on the Subordinated Debt, and to that end the Senior Debt Holder shall be entitled to receive directly, for application to the payment thereof (to the extent necessary to pay the Senior Debt in full after giving effect to any substantially concurrent payment or distribution to or provision for payment to the Senior Debt Holder in respect of the Senior Debt), any payment or distribution of any kind or character, whether in cash, property or securities, in respect of the Subordinated Debt.  The provisions of this Section shall not be applicable to payments made in accordance with the terms of this Series B Note and received prior to the commencement of any such dissolution or winding up or total or partial liquidation or reorganization of the Borrowers, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Borrowers.   11.           No direct or indirect payment by or on behalf of the Borrowers of principal of (premium, if any), or interest on, the Subordinated Debt, whether pursuant to the terms of Subordinated Debt, upon acceleration or otherwise, shall be made if at the time of such payment there exists (i) a default in the payment of all or any portion of principal of (premium, if any), interest on, fees or other amounts owing in connection with any Senior Debt or (ii) any default other than a default described in clause (i) above under any document or instrument governing or evidencing any Senior Debt, and, in either case, such default shall not have been cured or waived in writing.   12.           All amounts paid to the Series B Lenders pursuant to the terms of this Series B Note shall be distributed to each of the Series B Lenders on a pro rata basis.   13.           Rights and Obligations of Holders.   (g)           In the event that, notwithstanding anything contained in Section 8 prohibiting such payment or distribution, the Holders shall have received any payment on account of the Subordinated Debt at a time when such payment is prohibited by such provision before the Senior Debt is paid in full, then and in such event, such payment or distribution shall be received and held in trust by the Holders apart from their other assets and paid over or delivered to the holders of the Senior Debt remaining unpaid to the extent necessary to pay in full in cash the principal of (premium, if any), and interest on, such Senior Debt in accordance with its terms and after giving effect to any concurrent payment or distribution to the holders of such Senior Debt.   (h)           Nothing contained in this Section 9 will limit the right of the Holders of Subordinated Debt to take any action to accelerate the maturity of the Subordinated Debt pursuant to Section 6 hereof, provided, however, that all Senior Debt then due or thereafter declared to be due shall first be paid in full before the Holders are entitled to receive any payment from any Borrowers of principal of, or interest on, the Note.   6   (i)            Upon any payment or distribution of assets or securities referred to in this Section 9, the Holders shall be entitled to rely upon any order or decree of a court of competent jurisdiction in which such dissolution, winding up, liquidation or reorganization proceedings are pending, and upon a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person making any such payment or distribution, delivered to the Holders for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of Senior Debt and other Indebtedness of the Borrowers, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 9.   14.           Rights of Holders of Senior Debt Not To Be Impaired.   15.           No right of any present or future holder of any Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act by any such holder, or by any noncompliance by the Borrowers with the terms and provisions and covenants herein regardless of any knowledge thereof such holder may have or otherwise be charged with.   16.           The provisions of these Sections 8-15 are intended to be for the benefit of, and shall be enforceable directly by, the holders of the Senior Debt.  The Borrowers and each Holder of any Note, by its acceptance thereof, acknowledges that the holders of the Senior Debt are relying upon the provisions of these Sections 8-15 in extending such Senior Debt.   17.           Subrogation.   18.           Upon the payment in full of all Senior Debt, the Holders shall be subrogated to the extent of the payments or distributions made to the holders of, or otherwise applied to payment of, the Senior Debt pursuant to the provisions of these Sections 8-15 and to the rights of the holders of Senior Debt to receive payments or distributions of assets of the Borrowers made on the Senior Debt until this Series B Note shall be paid in full; and for the purposes of such subrogation, no payments or distributions to holders of Senior Debt of any cash, property or securities to which Holders of this Series B Note would be entitled except for the provisions of these Sections 8-15 and no payment over pursuant to the provisions of these Sections 8-15 to holders of Senior Debt by the Holders, shall, as between the Borrowers, its creditors other than holders of Senior Debt and the Holders, be deemed to be payment by the Borrowers to or on account of Senior Debt, it being understood that the provisions of these Sections 8-15 are solely for the purpose of defining the relative rights of the holders of Senior Debt, on the one hand, and the Holders, on the other hand.   19.           If any payment or distribution to which the Holders would otherwise have been entitled but for the provisions of these Sections 8-15 shall have been applied, pursuant to the provisions of these Sections 8-15, to the payment of Senior Debt, then and in such case, the Holders shall be entitled to receive from the holders of Senior Debt at the time outstanding any payments or distributions received by such holders of Senior Debt in excess of the amount sufficient to pay all Senior Debt in full.   20.           Obligations of Borrowers Unconditional.   7   21.           Nothing contained in these Sections 8-15 or elsewhere in the Loan Documents or in this Series B Note is intended to or shall impair, as between the Borrowers and the Holders, the obligations of the Borrowers, which are absolute and unconditional, to pay to the Holders the principal of (premium, if any), and interest on, this Series B Note as and when the same shall become due and payable in accordance with its terms, or is intended to or shall affect the relative rights of the Holders and creditors of the Borrowers other than the holders of the Senior Debt, nor shall anything herein or therein prevent any Holder from exercising all remedies otherwise permitted by applicable law upon the occurrence of an Event of Default under the Loan Documents or under this Series B Note, subject to the rights, if any, under these Sections 8-15 of the holders of Senior Debt in respect of cash, property or securities of the Borrowers received upon the exercise of any such remedy.   22.           The failure to make a payment on account of principal of, or interest on, this Series B Note by reason of any provision of these Sections 8-15 shall not be construed as preventing the occurrence of an Event of Default hereunder.   23.           Notice to Holders.  Each Borrowers shall give prompt written notice to each Holder of any fact known to such Borrower which would prohibit the making of any payment on or in respect of this Series B Note, but failure to give such notice shall not affect the subordination of the Subordinated Debt to the Senior Debt provided in Section 8.  Notwithstanding the provisions of these Sections 8-15 or any other provision of the Loan Documents or this Series B Note, no Holder shall be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or in respect hereof, unless and until the Holders shall have received written notice thereof from a Borrower or a representative of or holder of Senior Debt, and, prior to the receipt of any such written notice, subject to the provisions of these Sections 8-15 the Holders shall be entitled in all respects to assume no such facts exist.  Nothing contained in this Section 13 shall limit the right of the holders of Senior Debt to recover payments as contemplated by Sections 8 and 9.   24.           Right of Any Holder as Holder of Senior Debt.  Any Holder in its individual capacity shall be entitled to all the rights set forth in these Sections 8-15 with respect to any Senior Debt which may at any time be held by it, to the same extent as any other holder of Senior Debt, and nothing in this agreement shall deprive such Holder of any of its rights as such holder.   25.           Reinstatement.  The provisions of these Sections 8-15 shall continue to be effective or be reinstated, and the Senior Debt shall not be deemed to be paid in full, as the case may be, if at any time any payment of any of the Senior Debt is rescinded or must otherwise be returned by the holder thereof upon the insolvency, bankruptcy or reorganization of the Borrowers or otherwise, all as though such payment had not been made.   26.           No Novation.  This Amended and Restated Series B Note does not constitute a novation or waiver of the obligations and liabilities existing under that certain Amended and Restated Series B Note dated as of June 30, 2003 (the “Existing Series B Note”) and issued by the Borrowers, including any obligation or action required to be performed prior to the date hereof or to evidence payment of all or any of such obligations and liabilities.  The Borrowers hereby agree that this Series B Note amends and   8   restates in its entirety the Existing Series B Note and that from and after the date hereof, the Existing Series B Note shall be of no further force or effect except as to evidence the incurrence of the obligations of the Borrowers thereunder and the representations and warranties made thereunder.   The Borrowers further agree that (a) all of the obligations of the Borrowers under the Existing Series B Note are in all respects continuing (as amended hereby), with the terms thereof being modified to the extent provided herein; and (b) the liens and security interests as granted under the Security Documents securing payment of such obligations are in all respects continuing and in full force and effect and secure the payment of such obligations.   27.           Miscellaneous.  No delay or omission of the Series B Lender to exercise any right or power arising hereunder shall impair any such right or power or be considered to be a waiver of any such right or power, nor shall the Series B Lender’s action or inaction impair any such right or power. Each Borrower agrees to pay on demand, to the extent permitted by law, all costs and expenses incurred by the Series B Lender in the enforcement of its rights in this Series B Note and in any security therefor, including without limitation reasonable fees and expenses of the Series B Lender’s counsel. If any provision of this Series B Note is found to be invalid by a court, all the other provisions of this Series B Note will remain in full force and effect. Each Borrower and all other makers and indorsers of this Series B Note hereby forever waive presentment, protest, notice of dishonor and notice of non-payment. Each Borrower also waives all defenses based on suretyship or impairment of collateral. This Series B Note is executed by more than one Borrower and, therefore, the obligations of such entities hereunder are joint and several. This Series B Note may be executed in counterparts and shall bind each Borrower and its respective heirs, executors, administrators, successors and assigns, and the benefits hereof shall inure to the benefit of the Series B Lender and its successors and assigns.   This Series B Note has been delivered to and accepted by the Series B Lender and will be deemed to be made in New York. THIS SERIES B NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE SERIES B LENDER AND THE BORROWERS DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCLUDING ITS CONFLICT OF LAWS RULES.  Each Borrower hereby irrevocably consents to the jurisdiction of any state or federal court located in New York County, City of New York, New York, and consents that all service of process be sent by nationally recognized overnight courier service directed to each such Borrower at each such Borrower’s address set forth herein and service so made will be deemed to be completed on the day of receipt by such Borrower; provided that nothing contained in this Series B Note will prevent the Series B Lenders from bringing any action, enforcing any award or judgment or exercising any rights against any Borrower individually, against any security or against any property of any such Borrowers within any other county, state or other foreign or domestic jurisdiction.  Each Borrower acknowledges and agrees that the venue provided above is the most convenient forum for both the Series B Lenders and each such Borrower.  Each Borrower waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Series B Note.   9     THERMOVIEW INDUSTRIES, INC.   AMERICAN HOME DEVELOPERS CO., INC.   FIVE STAR BUILDERS, INC.   KEY HOME CREDIT, INC.   KEY HOME MORTGAGE, INC.   LEINGANG SIDING AND WINDOW, INC.   PRIMAX WINDOW CO.   PRECISION WINDOW MFG., INC.   ROLOX, INC.   TD WINDOWS, INC.   THERMAL LINE WINDOWS, INC.   THERMOVIEW OF MISSOURI, INC.   THERMO–TILT WINDOW COMPANY   THOMAS CONSTRUCTION, INC.   THERMO–SHIELD OF AMERICA (ARIZONA), INC.   THERMO–SHIELD OF AMERICA (MICHIGAN), INC.   THERMO–SHIELD COMPANY, LLC   THERMO–SHIELD OF AMERICA(WISCONSIN), LLC   THERMOVIEW ADVERTISING GROUP, INC.       By:         Charles L. Smith, President     10

NATIONWIDE MUTUAL FUNDS Nationwide Bond Fund Nationwide Enhanced Income Fund Nationwide Government Bond Fund Nationwide Inflation-Protected Securities Fund Nationwide Money Market Fund Nationwide Short Duration Bond Fund Supplement dated July 1, 2013 to the Prospectus dated March 1, 2013 Capitalized terms and certain other terms used in the supplement, unless otherwise defined in this supplement, have the meanings assigned to them in the Prospectus. Effective immediately, and through August 23, 2013, the following supplements the information under the heading “Investing with Nationwide Funds – Waiver of Class A Sales Charges” on page 37 of the Prospectus: Front-end sales charges on Class A shares are waived for former shareholders of the HighMark Tactical Growth & Income Allocation Fund and HighMark Tactical Capital Growth Allocation Fund ("HighMark Allocation Funds") who purchase such Class A shares using the redemption proceeds in connection with any redemption of their shares of the HighMark Allocation Funds as of the date hereof or the proceeds from the liquidation of the HighMark Allocation Funds.Solely for purposes of this Class A sales charge exemption, the Funds may accept third party checks representing HighMark Allocation Fund liquidation proceeds. Any investor who is eligible for this waiver and purchases Class A shares through a broker-dealer or other financial intermediary must specifically instruct such broker-dealer or other financial intermediary to purchase Class A shares pursuant to this waiver. An investor’s broker-dealer or other financial intermediary will not be able to purchase Class A shares on behalf of the investor pursuant to this waiver absent such prior instructions from the investor. PLEASE RETAIN THIS SUPPLEMENT FOR FUTURE REFERENCE

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K/A CURRENT REPORT Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported):May 21, 2012 (May 15, 2012) On Assignment, Inc. (Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation) 000-20540 95-4023433 (Commission file number) (I.R.S. Employer Identification No.) 26745 Malibu Hills Road, Calabasas, California (Address of principal executive offices) (Zip code) (818) 878-7900 (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 (seeGeneral Instruction A.2. below): o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) EXPLANATORY NOTE This Amendment No. 1 to the Current Report on Form 8-K (this “Form 8-K/A”) of On Assignment, Inc., a Delaware corporation (the “Company”), which was originally filed with the Securities and Exchange Commission on May 15, 2012 (the “Form 8-K”), is being filed solely to include the financial statements and pro forma financial information required by Item 9.01 which were excluded from the Form 8-K pursuant to Items 9.01(a) and 9.01(b).The financial statements for the years ended December 31, 2011 and December 25, 2010 and for each of the years in the three year period ended December 31, 2011 and pro forma financial information as of and for the year ended December 31, 2011 were also included in the Company’s Proxy Statement for its 2012 Annual Meeting of Stockholders, as filed with the Securities and Exchange Commission on April 13, 2012.Except as described in this Explanatory Note, no other information in the Form 8-K is modified or amended hereby.Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in the Form 8-K. Item 9.01. Financial Statements and Exhibits (a)Financial statements of businesses acquired. The following audited financial statements of Apex Systems, Inc. (“Apex Systems”) are included in this Form 8-K/A as Exhibit 99.1 and incorporated herein by reference in this Item 9.01: Independent Auditors’ Report Balance Sheets – December 31, 2011 and December 25, 2010 Statements of Income – Fiscal years ended December 31, 2011, December 25, 2010 and December 26, 2009 Statements of Stockholders’ Equity (Deficit) – Fiscal years ended December 31, 2011, December 25, 2010 and December 26, 2009 Statements of Cash Flows – Fiscal years ended December 31, 2011, December 25, 2010 and December 26, 2009 Notes to Financial Statements The following unaudited condensed financial statements of Apex Systems are included in this Form 8-K/A as Exhibit 99.2 and incorporated herein by reference in this Item 9.01: Condensed Balance Sheets as of March 31, 2012 and December 31, 2011 Condensed Statements of Income for the three months ended March 31, 2012 and March 26, 2011 Condensed Statements of Cash Flows for the three months ended March 31, 2012 and March 26, 2011 Notes to Condensed Financial Statements (b)Pro forma financial information. The following unaudited pro forma condensed combined financial statements are included in this Form 8-K/A as Exhibit 99.3 and incorporated herein by reference in this Item 9.01: Unaudited Pro Forma Condensed Combined Balance Sheets as of March 31, 2012 Unaudited Pro Forma Condensed Combined Statement of Income for the year ended December 31, 2011 Unaudited Pro Forma Condensed Combined Statement of Income for thethree months ended March 31, 2012 Notes to Unaudited Pro Forma Condensed Combined Financial Statements (d)Exhibits. Exhibit No. Description Consent of Independent Auditors. Audited financial statements of Apex Systems as of December 31, 2011 and December 25, 2010, and for the years ended December 31, 2011, December 25, 2010 and December 26, 2009. Unaudited condensed financial statements of Apex Systems as of March 31, 2012 and December 31, 2011, and for the three months ended March 31, 2012 and March 26, 2011. Unaudited pro forma condensed combined financial statements as of March 31, 2012, for the year ended December 31, 2011 and for thethree monthsended March 31, 2012. 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 on May 21, 2012. ON ASSIGNMENT, INC. /s/Peter T. Dameris By:Peter T. Dameris Its:Chief Executive Officer and President

Title: Fired for sick kid? [OR] Question:Im a single parent living in Oregon and started a new job recently and things were going great. last month i had my initial 3 month review and my boss said i was doing a great job. he offered some constructive feedback but basically said I was doing a good job. a week later I had to take an unexpected PTO day because my son got a stomach flu and he had to stay home from daycare. the very next day when I came into work I was called into a meeting where I was berated for not doing a good enough job and for missing deadlines. The following week I was called into another meeting and put on review. officially speaking I was being put on review for the missed deadlines. it is true that I have missed several deadlines, but, if you examine our record of work you can see that the entire workforce has been chronically missing deadlines. In fact, on most of my projects I don't even receive the data I need for my part until well after the overall deadline and in many cases we are talking about 1-2 weeks overdue. I asked for clarification on expectations during the review and why I was being singled out when everyone is missing deadlines. One of my supervisors acknowledged that it was not all my fault but then casually through the course of conversation compared my balancing work with children to him balancing work with taking care of his dog. So now, I'm left wondering if I am potentially on the chopping block because I had to take off for my sick kid. Should I be documenting things and/or reach out to an attorney? This is your typical salaried "at will" position. thank you! Topic: Labor Law Answer #1: They can fire you for missing work or poor performance, or good performance but they call it poor performance, or any other reason except illegal discrimination. You don't yet qualify for FMLA so no help there. If you are fired, file for unemployment.

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:February 25, 2014 (Date of earliest event reported:February 24, 2014) HAVERTY FURNITURE COMPANIES, INC. (Exact name of registrant as specified in its charter) Maryland 1-14445 58-0281900 (State or other jurisdiction of incorporation or organization) (Commission File Number) (I.R.S. Employer Identification No.) 780 Johnson Ferry Road, Suite 800, Atlanta, Georgia 30342 (Address of principal executive officers) ( Zip Code) Telephone number, including area code: (404) 443-2900 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): oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17CFR240.14a-12) oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17CFR240.14d-2(b)) oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR240.13e-4(c)) Item 2.02Results of Operations and Financial Condition On February 24, 2014, Haverty Furniture Companies, Inc. (“Havertys”) issued a press release regarding its results of operations for the quarter and year ended December 31, 2013, a copy of which is furnished under this Item 2.02 as Exhibit 99.1 hereto. The attached Exhibit 99.1 is not filed, but is furnished to comply with Regulation FD. The information disclosed in this Item 2.02 Current Report on Form 8-K is not considered to be “filed” for purposes of Section 18 of the Securities and Exchange Act of 1934 and is not subject to the liabilities of that section. Item 9.01Financial Statements, Pro Forma Financial Information and Exhibits (c)Exhibits 99.1Press Release dated February 24, 2014. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. HAVERTY FURNITURE COMPANIES, INC. February 25, 2014 By: Jenny Hill Parker Senior Vice President, Secretary and Treasurer

Title: Crashed into building due to car malfunction, can I be sued? Question:Hello, i’m writing this because this morning at about 1:20 am i was driving my friends home and i was going up a steep hill when all of a sudden when i slowed the car at almost the top my engine shut off out of nowhere. The brakes locked up and my acceleration wasn’t working. I started to roll down the hill really fast and I tried everything including the e brake and putting the car in park when it was rolling ( ultimately ruining my transmission). I managed to avoid cars parked on the sidewalk but i hit the windows and wall of a nearby business. I am 18 but I am under my parents insurance policy. We called the police ( my friends were with me in the car) and they came and said there was no need to file a criminal case. My insurance policy only covers up to $10k in property damage and this is worth way more than $10k in damage. I am an absolutely broke college student and my parents refuse to get involved. What’s my next step and best and worst case scenario. I believe the car won’t be deemed a total loss so i’ll be stuck with a car with a busted engine and transmission and no money to fix it or get a new one. Answer #1: Yes you can be sued. Hopefully you have enough coverage for whatever damage was caused.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: October 23, 2014 (Date of earliest event reported) BIORESTORATIVE THERAPIES, INC. (Exact Name of Registrant as Specified in Charter) Nevada 000-54402 91-1835664 (State or Other Jurisdiction of Incorporation) (Commission File No.) (IRS Employer Identification Number) 555 Heritage Drive, Jupiter, Florida (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: (561) 904-6070 Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. (e)On October 23, 2014, BioRestorative Therapies, Inc. (the “Company”) and Mark Weinreb, its Chief Executive Officer, agreed to amend the Employment Agreement between Mr. Weinreb and the Company, dated October 4, 2010, as amended.Pursuant to the amendment, (i) effective as of October 1, 2014, Mr. Weinreb’s annual salary was reduced from $600,000 to $450,000 (equal to the $450,000 payable to Mr. Weinreb through September 30, 2014) and (ii) effective January 1, 2015, Mr. Weinreb’s annual salary will be reduced from $450,000 to $400,000.Mr. Weinreb’s entitlement to an annual bonus equal to 50% of his annual salary will continue. On October 23, 2014, the Board of Directors of the Company (the “Board”) approved an increase in the annual salary payable to Francisco Silva, the Company’s Vice President of Research and Development.Effective January 1, 2015, Mr. Silva’s annual salary will be increased from $230,000 to $250,000.In addition, the Board determined that, effective January 1, 2015, Mr. Silva will be entitled to an annual bonus of up to 20% of his annual salary based on the achievement of certain performance standards, which are to be determined at a later date. On October 23, 2014, the Compensation Committee of the Board (the “Committee”) approved an increase in the number of shares of common stock authorized to be issued pursuant to the Company’s 2010 Equity Participation Plan from 12,000,000 to 20,000,000.Concurrently, the Committee granted options to executive officers and directors of the Company, at an exercise price of $0.33 per share, to purchase the following number of shares of common stock:Mr. Weinreb: 3,000,000; Mr. Silva: 750,000; Mandy Clyde: 200,000; A. Jeffrey Radov: 1,000,000; Joseph Swiader: 500,000; and Paul Jude Tonna: 500,000.In addition, on October 27, 2014, the Committee granted an option to Dr. Wayne Marasco, Chairman of the Company’s Scientific Advisory Board, to purchase 250,000 shares of common stock at an exercise price of $0.34 per share. 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. BIORESTORATIVE THERAPIES, INC. Dated: October 29, 2014 By: /s/Mark Weinreb Mark Weinreb Chief Executive Officer

Name: Commission Regulation (EEC) No 2442/89 of 8 August 1989 fixing, for the fifth 12-month period, amounts for the levy referred to in article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector Type: Regulation Date Published: nan 9 . 8 . 89 Official Journal of the European Communities No L 231 / 13 COMMISSION REGULATION (EEC) No 2442/89 of 8 August 1989 fixing, for the fifth 12-month period, amounts for the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector 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 857/84 of 31 March 1984 adopting general rules for the application of the levy referred to in Article 5c of Regulation (EEC) No 804/68 in the milk and milk products sector ('), as last amended by Regulation (EEC) No 11 17/89 (2), and in particular Article 1 1 (a) thereof, Whereas Article 5c of Council Regulation (EEC) No 804/68 (3), as last amended by Regulation (EEC) No 763/89 (4) instituted a levy payable by every producer or purchaser of milk or other milk products on quantities exceeding an annual reference quantity ; whereas rates for this levy are set in Article 1 of Regulation (EEC) No 857/84 ; Whereas, pursuant to Article 11 of Regulation (EEC) No 857/84, the Commission must state amounts for the levy, Article 1 The amount of the levy referred to in Article 1 ( 1 ) of Regulation (EEC) No 857/84 is fixed for the fifth 12-month period at ; ” ECU 27,84 per 100 kilograms of milk end/or milk equivalent where formula A or formula B is applied, ” ECU 20,88 per 100 kilograms of milk and/or milk equivalent where there is direct sale for consumption . Article 2 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, 8 August 1989 . For the Commission Ray MAC SHARRY Member of the Commission (') OJ No L 90, 1 . 4. 1984, p. 13 . (2) OJ No L 118, 29 . 4. 1989, p. 10 . 0 OJ No L 148, 28 . 6 . 1968 , p. 13 . (4) OJ No L 84, 29 . 3 . 1989, p. 1 .

Name: 2011/837/EU: Commission Implementing Decision of 12 December 2011 correcting Decision 2010/399/EU excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2011) 9130) Type: Decision_IMPL Subject Matter: Europe; economic policy; EU finance; agricultural policy Date Published: 2011-12-15 15.12.2011 EN Official Journal of the European Union L 332/11 COMMISSION IMPLEMENTING DECISION of 12 December 2011 correcting Decision 2010/399/EU excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2011) 9130) (only the Slovenian text is authentic) (2011/837/EU) THE EUROPEAN COMMISSION, Having regard to the Treaty on the functioning of the European Union, Having regard to Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (1), and in particular Article 7(4) thereof, Having regard to Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (2), and in particular Article 31 thereof, Having consulted the Committee on the Agricultural Funds, Whereas: (1) By Decision 2010/399/EU (3) the Commission excluded from European Union financing an amount of EUR 2 280 860,00 for Slovenia, concerning rural development measures agri-environment and less-favoured areas, as regards amounts which had not yet been recovered from the beneficiaries as of 23 June 2009. The above figure resulted from data which had been supplied by Slovenia to the Commission. Slovenia was informed that any recoveries of those amounts made after 23 June 2009 shall neither be declared nor reimbursed to the Commission. (2) When submitting the final declaration of expenditure and final payment claim to the European Commission for the closure of the Transitional Rural Development programmes Slovenia incorrectly included amounts recovered and which were subjected to the abovementioned financial correction in their final declarations. On the basis of the amounts supplied by Slovenia, the Commission Decision 2009/984/EU (4) laying down the final balance to be paid or recovered at programme closure in the field of transitional rural development programmes financed by the European Agricultural Guidance and Guarantee Fund (EAGGF) by the Czech Republic, Hungary and Slovenia was adopted. (3) After receipt of the recovery order for the correction from Decision 2010/399/EU Slovenia informed the Commission that part of the correction has been already deducted in Decision 2009/984/EU. After a thorough analysis and confirmation by the Slovenia Paying Agencys Certification Body, an overlap of EUR 2 170 331,88 was confirmed. (4) Therefore Slovenia is liable to the Commission only for the difference between the amount of the original correction of EUR 2 280 860 in Decision 2010/399/EU and the amount of the recoveries declared in Decision 2009/984/EU of EUR 2 170 331,88. This difference equals EUR 110 528,12. The original recovery order will be replaced with a new one with the amount of EUR 110 528,12. (5) Decision 2010/399/EU should therefore be corrected accordingly, HAS ADOPTED THIS DECISION: Article 1 All entries in the Annex to Decision 2010/399/EU concerning Slovenia shall be replaced by those set out in the Annex to this Decision. Article 2 This Decision is addressed to the Republic of Slovenia. Done at Brussels, 12 December 2011. For the Commission Dacian CIOLOÈ Member of the Commission (1) OJ L 160, 26.6.1999, p. 103. (2) OJ L 209, 11.8.2005, p. 1. (3) OJ L 184, 17.7.2010, p. 6. (4) OJ L 338, 19.12.2009, p. 95. ANNEX BUDGET ITEM 6500 MS Measure FY Reason Type Correction % Currency Amount Deductions Financial impact SI Rural Development - Transitional Instrument 2005 late application of the verification and recovery procedures one-off EUR “1 354 253,00 “1 263 363,80 “90 889,20 SI Rural Development - Transitional Instrument 2006 late application of the verification and recovery procedures one-off EUR “ 926 607,00 “ 906 968,08 “19 638,92 Total SI “2 280 860,00 “2 170 331,88 “ 110 528,12

UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON D.C. 20549 FORM 12b-25 NOTIFICATION OF LATE FILING Commission File Number:000-52910 Cusip Number: 15234S203 (Check One)x Form 10-Ko Form 20-Fo Form 11-Ko Form 10-Qo Form N-SAR For Period Ended:December 31, o Transition Report on Form 10-K o Transition Report on Form 20-F o Transition Report on Form 11-K o Transition Report on Form 10-Q o Transition Report on Form N-SAR For the Transition Period Ended: Read Instruction (on back page) Before Preparing Form. Please Print or Type. Nothing in this form shall be construed to imply that the Commission has verified any information contained herein. If the notification relates to a portion of the filing checked above, identify the Item(s) to which the notification relates: PART I - REGISTRANT INFORMATION Centracan Incorporated Full Name of Registrant N/A Former Name if Applicable c/o Olshan Grundman Frome, 65 East 55th Street Address of Principal Executive Office (Street and Number) New York, New York City, State, Zip Code PART II - RULES 12b-25(b) AND (c) If the subject report could not be filed without unreasonable effort or expense and the registrant seeks relief pursuant to Rule 12b-25(b), the following should be completed. (Check box if appropriate) (a) The reasons described in reasonable detail in Part III of this form could not be eliminated without unreasonable effort or expense; x (b) The subject annual report, semi-annual report, transition report on Form 10-K, Form 20-F, 11-K or Form N-SAR, or portion thereof, will be filed on or before the fifteenth calendar day following the prescribed due date; or the subject quarterly report of transition report on Form 10-QSB, or portion thereof will be filed on or before the fifth calendar day following the prescribed due date; and (c) The accountant's statement or other exhibit required by Rule 12b-25(c) has been attached if applicable. PART III - NARRATIVE State below in reasonable detail the reasons why Forms 10-K, 20-F, 11-K, 10-Q, N-SAR or the transition report or portion thereof could not be filed within the prescribed time period. The Company has not been able to compile the requisite financial data and other narrative information necessary to enable it to have sufficient time to complete its report on Form 10-K for the fiscal year ended December 31, 2009 by March 31, 2010, the required filing date, without unreasonable effort and expense. PART IV - OTHER INFORMATION (1) Name and telephone number of person to contact in regard to this notification: Robert L. Frome 212 451-2254 (Name) (Area Code) (Telephone No.) (2) Have all other periodic reports required under section 13 or 15(d) of the Securities Exchange Act of 1934 or Section 30 of the Investment Company Act of 1940 during the preceding 12 months or for such shorter period that the registrant was required to file such report(s) been filed?If the answer is no, identify report(s). xYes o No (3) Is it anticipated that any significant change in results of operations from the corresponding period for the last fiscal year will be reflected by the earnings statements to be included in the subject report or portion thereof? oYes x No If so, attach an explanation of the anticipated change, both narratively and quantitatively, and, if appropriate, state the reasons why a reasonable estimate of the results cannot be made. Centracan Incorporated (Name of Registrant as Specified in Charter) has caused this notification to be signed on its behalf by the undersigned thereunto duly authorized. Date:March 29, 2009 By: /s/ Jerome Goubeaux Jerome Goubeaux, President

EXHIBIT 99.1 FDA Issues Complete Response Letter for ApadazTM New Drug Application Coralville, IA – June 13, 2016 – KemPharm, Inc. (NASDAQ: KMPH), a clinical-stage specialty pharmaceutical company engaged in the discovery and development of proprietary prodrugs, today announced that the U.S. Food and Drug Administration (FDA) has issued a Complete Response Letter (CRL) regarding the New Drug Application (NDA) for Apadaz™ (benzhydrocodone and acetaminophen), KemPharm’s investigational abuse-deterrent product candidate for the short-term management of acute pain. The FDA issues CRLs to indicate that the Agency considers the review cycle for an application is complete and that the application is not ready for approval in its present form.Included in the CRL is guidance that describes all specific deficiencies that the FDA has identified in the application. When possible, the FDA recommends actions that the applicant may take to place the application in condition for approval. “After last week’s amendment request, a Complete Response Letter from the FDA was received for the Apadaz NDA,” said Travis C. Mickle, Ph.D., President and CEO of KemPharm.“We are currently evaluating the points raised in the CRL and intend to request an End of Review meeting with the Agency to determine the pathway forward for Apadaz.” About KemPharm KemPharm is a clinical-stage specialty pharmaceutical company focused on the discovery and development of prodrugs to treat serious medical conditions through its Ligand Activated Therapy (LAT) platform technology.KemPharm utilizes its LAT platform technology to generate improved prodrug versions of FDA-approved drugs in the high need areas of pain, ADHD and other CNS disorders.

EXHIBIT 10.1   Employment and Confidentiality Agreement   This Employment and Confidentiality Agreement (the “Agreement”) is made between First Bank of Beverly Hills (the “Bank”), a state chartered bank, and Joseph W. Kiley, III (the “Employee”). The Bank is an affiliate of Beverly Hills Bancorp, Inc. a Delaware corporation (the “Company”).   Accordingly, on the basis of the representations, warranties, and covenants contained in this Agreement, the parties agree as follows effective as of January 1, 2006 (the “Effective Date”):   1. ARTICLE 1 – EMPLOYMENT AND TERM     1.1. The Bank earlier notified Employee that it was not renewing Employee’s employment under the terms of the Employment, Confidentiality and Contingent Severance Agreement dated January 1, 2003 (the “Severance Agreement”). Accordingly, Employee’s employment pursuant to that Severance Agreement will expire December 31, 2005. Notwithstanding the fact that the Bank and Employee are entering into a new employment relationship pursuant to this Agreement, the pay and benefits Employee is to receive under the terms of the Severance Agreement pursuant to Section 4.2(b) and (c) thereof shall not be impacted or otherwise affected by Employee’s entering into this Agreement with the Bank and Employee shall begin to receive the pay and benefits outlined in the Severance Agreement as a result of the Bank’s non-renewal of the Severance Agreement commencing on January 1, 2006. Likewise, Employee’s entitlement to receive the 2004 continuous service bonus payments pursuant to the Amended 2004 Annual Incentive Award Plan is not altered by this Agreement and thus payable on January 1, 2006.     1.2. Term. The term of employment under this Agreement shall commence on the Effective Date, and shall continue for a period of twelve (12) months thereafter. Either the Bank or Employee may terminate the employment relationship under this Agreement at any time, with or without reason, upon thirty (30) days notice to the other. If the Bank provides thirty (30) days notice to terminate the employment relationship, then it will have no further obligation to pay Employee his salary through the remainder of the term of this Agreement. The Bank may, at its option, offer to continue the employment relationship under this Agreement for an additional 6 month term, upon written notice to Employee.   2. ARTICLE 2 – DUTIES OF THE EMPLOYEE     2.1. Position and Duties. The Bank will employ the Employee as its President and Chief Executive Officer, and Employee accepts such employment, on the terms and conditions set forth in this Agreement. Employee will undertake and   Page 1   perform all duties as required of the position. Employee will render such services and perform such duties and acts in connection with any aspect of the Bank’s business as may be lawfully required by the management or the Board of Directors of the Bank. Employee shall perform the services contemplated herein faithfully, diligently, to the best of Employee’s ability, and in the best interests of the Bank. Employee will also devote his full and exclusive business time and efforts in rendering such services and to the extent of his authority will endeavor to ensure that the Bank is in compliance with all laws, rules, regulations and policies applicable to the Bank. The Employee shall, at all times, adhere to and obey any and all written internal rules and regulations governing the conduct of the Bank’s employees as established and modified from time to time.     2.2. Exclusive Services. During his employment by the Bank, the Employee shall not, without the express prior written consent of the Board of Directors of the Bank, engage directly or indirectly in any outside employment or consulting of any kind, whether or not the Employee receives remuneration for such services. Further, the Employee shall not engage in any activity that would impair the Employee’s ability to act and exercise judgment in the best interest of the Bank.     2.3. Subpoenas; Cooperation in Defense of the Bank. If the Employee, during employment or thereafter, is served with any subpoena or other compulsory judicial or administrative process calling for production of confidential information or if the Employee is otherwise required by law or regulations to disclose confidential information, the Employee will immediately, before making any such production or disclosure, notify the Bank and provide it with such information as may be necessary for the Bank to take such action as the Bank deems necessary to protect its interests. The Employee agrees to cooperate reasonably with the Bank, whether during employment or thereafter, in the prosecution or defense of all threatened claims or actual litigation in which the Bank is or may become a party, whether now pending or hereafter brought, in which the Employee has knowledge of relevant facts or issues. The Employee shall be reimbursed for reasonable expenses for travel time due to cooperating with the prosecution or defense of any litigation for the Bank.     2.4. Other Obligations. The Employee acknowledges that the Bank from time to time may have agreements with other persons or with various governmental agencies that impose obligations or restrictions on the Bank regarding inventions or creative works made during the course of the Bank’s work under such agreements, or that relate to the confidential nature of such work. The Employee agrees to be bound by all such obligations and restrictions of which the Employee is informed by the Bank and to take all action necessary to discharge the obligations of the Bank thereunder.   Page 2 3. ARTICLE 3 – COMPENSATION     3.1. Base Salary. Employee will receive a base salary of $275,000.00 per year, less applicable withholdings. This salary shall be payable semi-monthly in accordance with the Bank’s regular payroll practices.     3.2. Bank Employee Benefits. Employee will be entitled to participate in the Bank’s employee benefit plans, including the Amended 2004 Annual Incentive Award Plan or its successor, 401(k) savings plan, medical, dental, vision, long-term disability, and short term disability benefits or insurance programs on the same basis as any of those benefits or insurance programs are available generally to other officers of similar position under the Bank’s then current personnel policies. The Bank and the Company will not, without Employee’s written consent, make any changes in Employee’s rights or benefits thereunder, except to the extent such changes are made applicable to all executive-level Bank and Company employees on a non-discriminatory basis. The Bank’s obligations to continue coverage of these benefits under Section 4.2(c) of the above-referenced Severance Agreement will be suspended during the period of time Employee continues his employment pursuant to this Agreement. Upon the termination of Employee’s employment pursuant to this Agreement, the Bank’s obligations under Section 4.2(c) of the Severance Agreement will commence and continue under the provisions stated therein.     3.3. Vacation. Employee will be eligible to earn vacation time at a rate of 13.33 hours per month up to a total of 160 hours in the calendar year. Vacation time not used in any calendar year may be carried forward, provided, however, that, once the Employee has accrued 200 hours, Employee shall not be eligible to accrue additional vacation time until he has taken one or more days of vacation.     3.4. Reimbursement for Expenses. To the extent Employee incurs necessary and reasonable business expenses in the course of his employment, the Bank will reimburse Employee for such expenses, subject to the Bank’s then current policies regarding reimbursement of such business expenses.     3.5. Indemnity and Insurance. Employee shall receive all benefits and privileges to which the Employee is entitled by law or pursuant to the Bylaws of the Bank or the Company.     3.6. 2005 Bonus Payment. Employee will be eligible to receive a 2005 bonus in the amount of $175,000.00 pursuant to the Amended 2004 Annual Incentive Award Plan approved by the Board on February 4, 2005. Said bonus payment will be made to Employee on or before March 15, 2006.     3.7. Continuous Service Bonus Eligibility. Employee will be eligible to receive a continuous service bonus in the amount of $75,000.00 if Employee remains employed through June 30, 2006. If the Bank terminates Employee’s employment pursuant to this Agreement at any time prior to June 30, 2006, Employee will remain eligible to receive this continuous service bonus payment. Should Employee terminate his employment relationship with the Bank prior to   Page 3   June 30, 2006, Employee will forfeit his eligibility for the continuous service bonus payment. If Employee is terminated for “cause” as defined in Section 4.1 of this Agreement prior to June 30, 2006, then Employee is not entitled to and forfeits his eligibility for the continuous service bonus set forth in this Section 3.7. If Employee remains employed with the Bank after June 30, 2006, then, at the Bank’s Board of Directors’ sole discretion, Employee may be provided a Bonus Opportunity in addition to the bonus mentioned in this Section 3.7 as provided in Section 3.2.   4. ARTICLE 4 – TERMINATION FOR CAUSE     4.1 Termination for Cause. Termination for cause shall mean termination because of Employee’s incompetence, personal dishonesty, willful misconduct, any breach of fiduciary duty involving personal profit, habitual neglect of duties, intentional failure to perform stated duties, willful violation of any material law, rule or regulation, order or material breach of any employment policy of the Bank or any material breach of any provision of this Agreement. Written notice delivered to Employee is a prerequisite to Termination for Cause and such termination shall be effective on the delivery date of the written notice. Employee shall have the right to receive compensation or other benefits which have already vested or been earned as of the date of notice of Termination for Cause, unless expressly prohibited by the terms of any plan, program or agreement governing such compensation or benefits. Employee shall receive no other compensation or severance pay in the event of Termination for Cause.   5. ARTICLE 5 – CONFIDENTIALITY AND NON-SOLICITATION     5.1. Non-disclosure of Confidential and Trade Secret Information. Employee acknowledges that, in the course of employment with the Bank, Employee will have access to and learn confidential information. Confidential information includes but is not limited to information about the Bank’s borrowers and clients, the terms and conditions under which the Bank or its affiliates deal with borrowers and clients, pricing information for the purchase or sale of assets, financing formulas analyzing assets portfolios, techniques, data, marketing plans and tactics, technical information, lists of asset sources, the processes and practices of the Bank and related companies, information contained in electronic or computer files, financial information, salary and wage information, and other information that is designated by the Bank or its affiliates as confidential or that Employee knows or should know is confidential information provided by third parties that the Bank or its affiliates are obligated to keep confidential and all other proprietary information of the Bank or its affiliates. Employee acknowledges that all confidential information is and shall continue to be the exclusive property of the Bank or its affiliates, whether or not prepared in whole or in part by the Employee and whether or not disclosed to or entrusted to the Employee in connection with employment by the Bank. Employee agrees not to   Page 4   disclose confidential information, directly or indirectly, under any circumstances or by any means, to any third persons without the prior written consent of the Bank. Employee agrees that he will not copy, transmit, reproduce, summarize, quote, or make any commercial or other use whatsoever of confidential information, except as may be necessary to perform work done by Employee for the Bank. Employee agrees to exercise the highest degree of care in safeguarding confidential information against loss, theft or other inadvertent disclosure and agrees generally to take all steps necessary or requested by the Bank to ensure maintenance of the confidentiality of the confidential information. Employee agrees in addition to the specific covenants contained herein to comply with all of the Bank’s policies and procedures, as well as all applicable laws, for the protection of confidential information.     5.2. Exclusions. Section 5.1 shall not apply to the following information: (a) information now or hereafter voluntarily disseminated by the Bank to the public or which otherwise becomes part of the public domain through lawful means; (b) information already known to the Employee as documented by written records which predate Employee’s employment with the Bank; (c) information subsequently and rightfully received from third parties and not subject to any obligation of confidentiality; or (d) information independently developed by Employee after termination of his employment.     5.3. Confidential Proprietary and Trade Secret Information of Others. Employee represents that he has disclosed to the Bank any agreement to which Employee is or has been a party regarding the confidential information of others and Employee understands that Employee’s employment by the Bank will not require Employee to breach any such agreement. Employee will not disclose such confidential information to the Bank nor induce the Bank to use any trade secret proprietary information received from another under an agreement or understanding prohibiting such use or disclosure.     5.4. Non-solicitation of Employees. During the period of twelve (12) months after termination of this Agreement, Employee shall not directly or indirectly solicit for employment or for independent contractor work any employee of the Bank or the Company, and shall not encourage any such employee to leave the employment of the Bank or the Company.     5.5. Company to Benefit from Provisions. To the extent any provisions of this Article 5 relates in any way to confidential information and trade secrets of the Company, then the obligations of Employee set forth in this Article 5 shall also extend to the Company and inure to its benefit.   6. ARTICLE 6 – BANK’S OWNERSHIP IN EMPLOYEE’S WORK     6.1. Bank’s Ownership. The Employee agrees that all inventions, discoveries, improvements, trade secrets, formulas, techniques, mask works, processes, and   Page 5   know-how, whether or not patentable, and whether or not reduced to practice, that are conceived or developed during the Employee’s employment with the Bank, either alone or jointly with others, or relating to the Bank or to the banking industry shall be owned exclusively by the Bank, and the Employee hereby assigns to the Bank all Employee’s right, title, and interest in all such intellectual property. The Employee agrees that the Bank shall be the sole owner of all rights pertaining thereto, including but not limited to domestic and foreign patents or other rights pertaining thereto, and further agrees to execute all documents that the Bank reasonably determines to be necessary or convenient for use in applying for, prosecuting, perfecting, or enforcing patents or other intellectual property rights, including the execution of any assignments, patents applications, or other documents that Bank may reasonably request. The Employee shall claim no interest in any inventions, copyrighted material, mask works, patents, or patent applications unless the Employee demonstrates that any such invention, copyrighted material, mask, work, patent, or patent application was developed before he began any employment with the Bank. This provision is intended to apply only to the extent permitted by applicable law.     6.2. Statutory Limitation on Assignment. The Employee understands that the Bank is hereby advising the Employee that any provision in this Agreement requiring the Employee to assign rights in any invention does not apply to an invention that qualifies fully under the provisions of Section 2870 of the California Labor Code. That Section provides, as follows:     (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information, except for those inventions that either:     (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or     (2) Result from any work performed by the employee for the employer.     (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.   By signing this Agreement, the Employee acknowledges that this paragraph shall constitute written notice of the provisions of Section 2870.   Page 6   6.3 Ownership of Records. Any written record that the Employee may maintain of inventions, discoveries, improvements, trade secrets, formulae, processes, or know-how, whether or not patentable and whether or not reduced to practice, and any such records relating to original works of authorship or mask works made by the Employee, alone or jointly with others, in the course of the Employee’s employment with the Bank shall remain the property of the Bank. The Employee shall furnish the Bank any and all such records immediately upon request.     6.4 Ownership of Records. If the Employee, during employment with the Bank, is engaged in or associated with the planning or implementation of any project, program, or venture involving the Bank and any third parties, all rights in the project, program, or venture shall belong to the Bank, and the Employee shall not be entitled to any interest therein or to any commission, finder’s fee, or other compensation in connection therewith other than the salary to be paid to the Employee as provided in this Agreement.     6.5 Return of Bank’s Property and Materials. Upon termination of employment with the Bank, Employee shall deliver to the Bank all Bank property and materials that are in the Employee’s possession or control, including all of the information described as confidential information in Article 5 of this Agreement and including all other information relating to any inventions, discoveries, improvements, trade secrets, formulae, processes, know-how, original works of authorship, or mask works of the Bank.     6.6 Company to Benefit from Provisions. To the extent any provisions of this Article 6 relates in any way to information, property, rights, projects, ventures, or inventions of the Company, then the obligations of Employee set forth in this Article 6 shall also extend to the Company and inure to its benefit.   7. ARTICLE 7 – DISPUTE RESOLUTION AGREEMENT     7.1 In the event of any dispute, claim or controversy between the Bank and Employee, both parties agree to initially submit such dispute, claim or controversy to non-binding mediation, by a mediator mutually agreed upon by the Bank and Employee. The disputes, claims and controversies to be submitted to mediation include, but are not limited to, claims arising from the California Constitution; Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e); the California Fair Employment and Housing Act (Cal.Govt. Code §12900 et seq.); the Americans with Disabilities Act; the Age Discrimination in Employment Act (29 U.S.C. §§ 621-633a); the Older Workers’ Benefit Protection Act; and claims of intentional infliction of emotional distress; breach of contract including but not limited to this Agreement; breach of implied contract; or any other statute or common law principle of similar effect.     7.2 Either party may commence the non-binding mediation process called for in this Dispute Resolution Agreement by providing written notice upon the   Page 7   other party as set forth in paragraph 8.10 of this Agreement. The parties will then agree to submit the claim to a mediator mutually agreed upon by the Bank and Employee. The parties will cooperate with one another and with the non-binding mediator, in selecting a mediator, and in scheduling the mediation.     7.3 The Bank shall pay all of the fees and costs of the non-binding mediation and will pay for its own attorney’s fees and will not request any fees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the Employee.     7.4 If the parties fail to resolve their dispute, claim or controversy in non-binding mediation as set forth in paragraphs 7.1-7.3, above, then the Bank and Employee agree to submit such dispute, claim or controversy to final and binding arbitration, by an arbitrator or association mutually agreed upon by the arbitration include, but are not limited to, claims arising from the California     7.5 Either party may commence the arbitration process called for in this Dispute Resolution Agreement by first filing a demand upon the other party. The parties will then agree to submit the claim to the arbitrator or association mutually agreed upon by the Bank and Employee. Thereafter, the demand shall be filed with the arbitrator or association mutually agreed upon. The arbitration will be conducted in accordance with provisions set forth by such individual or organization, that are in effect at the time of filing the demand for arbitration. The parties will cooperate with one another and with the arbitrator or association, in selecting an arbitrator, and in scheduling the arbitration proceedings. The arbitrator will issue a written award discussing the facts and the law. The arbitrator shall have the authority to provide for all types of relief that would otherwise be available in court.     7.6 For purposes of the arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurrers, motions to strike, motions for summary judgment and motions for judgment on the pleadings pursuant to the California Rules of Civil Procedure Code and the California Evidence Code. The parties are entitled to conduct discovery pursuant to the California Code of Civil Procedure.     7.7 The Bank shall pay all of the fees and costs of the arbitration and will pay for its own attorney’s fees and will not request any fees or costs from the Employee. Should the Employee retain legal counsel, the cost of such legal counsel shall be the sole responsibility of the Employee.   Page 8   7.8 Employee Acknowledgment. By initialing in the space below you are agreeing to have all disputes, claims or controversies arising out of or relating to your employment decided by neutral arbitration, and you are giving up any rights you might possess to have those matters litigated in court or jury trial. By initialing in the space below you are giving up your judicial right to appeal. If you refuse to submit to arbitration after agreeing to this provision, you may be compelled to arbitrate under federal or state law. Your agreement to this arbitration provision is voluntary.   I have read and understand the foregoing and agree to submission of all disputes, claims or controversies arising out of or relating to this agreement to neutral arbitration in accordance with this agreement.                     EMPLOYEE       THE BANK     7.9 Employee has been advised to seek the advice of an attorney regarding the legal effect of this agreement prior to signing it. The Employee specifically acknowledges that the Employee is entering into this agreement voluntarily and has not been coerced into signing the agreement.   8. ARTICLE 8 – MISCELLANEOUS     8.1 Severable Provisions. The provisions of this Agreement are separate and distinct, and if any provisions are determined to be unenforceable, in whole or in part, the remaining provisions, and the enforceable parts of any partially unenforceable provisions, shall nevertheless be enforceable.     8.2 Indemnification. The Bank and Employee are entering into an indemnification agreement in the form attached hereto as Exhibit “A.” Any payments made to Employee pursuant to such indemnification agreement are subject to and conditioned upon compliance with 12 C.F.R. Section 545.121, and any rules or regulations promulgated thereunder.     8.3 Successors and Assigns. The Bank shall require any successor or assignee, whether direct or indirect, by purchase, merger, consolidation, or otherwise to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform in writing this Agreement in the same manner and to the same extent that the Bank would be required to perform it if no such succession or assignment had taken place. This Agreement shall inure to the benefit of and be binding upon the Bank, its successors and assigns, and upon the Employee and his heirs, executors, administrators and legal representatives. No party to this Agreement may delegate its or his duties hereunder without the prior written consent of the other parties to this Agreement.   Page 9   8.4 Governing Law. California law shall in all respects govern the validity, construction, and interpretation of this Agreement.     8.5 Source of Payments. All payments provided in this Agreement shall be timely paid in cash or check from the general funds of the Bank. The Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to Employee and, if such amounts and benefits due from the Bank are not timely paid or provided by the Bank, such amounts and benefits shall be paid or provided by the Company.     8.6 Incorporation by Reference of Relevant Regulatory Law. This Agreement incorporates by reference all applicable regulatory law, including but not limited to 12 U.S.C. section 1828(k) and any regulations promulgated under it; 12 U.S.C. section 1818(e); and 12 C.F.R. section 563.39(b); and all replacement statutes and regulations.     8.7 Integration. This Agreement, including any documents expressly incorporated into it by the terms of this Agreement, constitute the entire agreement between the parties and supersedes all prior oral and written agreements, understandings, negotiations, and discussions relating to the subject matter of this Agreement. With this Agreement the parties rescind any previous employment agreements or arrangements between themselves.     8.8 No Oral Modification. Any supplement, modification, waiver, or cancellation of this Agreement is valid only if it is set forth in a writing signed by both parties.     8.9 No Waiver. The waiver of any provision of this Agreement shall not constitute a waiver of any other provision and, unless otherwise stated, shall not constitute a continuing waiver.     8.10 Notices. Any notices required under this Agreement shall be in writing and shall be deemed to have been given (i) if personally delivered, when so delivered, (ii) if mailed, one week after having been placed in the U.S. mail, registered or certified, postage prepaid, addressed to the party to whom it is directed at the address listed below, or (iii) if given by facsimile, when the notice is transmitted to the facsimile number specified below, and confirmation is received:   If to the Bank:   23901 Calabasas Road, Suite 1050 Calabasas, CA 91302 Attention: Chairman, Compensation Committee With a copy to the Chairman of the Board Telephone: (818) 223-5474 Facsimile: (818) 223-5487   Page 10 If to Employee:   Joseph W. Kiley, III 14734 Valley Vista Boulevard Sherman Oak, CA 91403 Telephone: (818) 783-4334 Facsimile: (818) 783-4523   9. ARTICLE 9 – ADVICE OF COUNSEL   Each party acknowledges that it has had an opportunity to negotiate, carefully consider, and receive the advice of any attorney of its own choosing on the terms of this Agreement before signing it. To the extent that any party does not seek the advice of an attorney, it knowingly and freely waives such a right.   ACCEPTED AND AGREED TO:       THE BANK       EMPLOYEE Date: December 21, 2005.       By   /s/ Larry B. Faigin       By   /s/ Joseph W. Kiley, III     Larry B. Faigin               Executive Vice President First Bank of Beverly Hills               Page 11

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 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 June , 2015 (Commission File No. 001-32221) , GOL LINHAS AÉREAS INTELIGENTES S.A. (Exact name of registrant as specified in its charter) GOL INTELLIGENT AIRLINES INC. (Translation of Registrant's name into English) Praça Comandante Linneu Gomes, Portaria 3, Prédio 24 Jd. Aeroporto 04630-000 São Paulo, São Paulo Federative Republic of Brazil (Address of Regristrant's 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 X Form 40-F 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 No X If "Yes" is marked, indicated below the file number assigned to the registrant in connection with Rule 12g3-2(b): The domestic load factor reaches 77.0%, an increase of 1.6 p.p. compared to 2014 São Paulo, June 22, 2015 – GOL Linhas Aéreas Inteligentes S.A. (BM&FBovespa: GOLL4 and NYSE: GOL), (S&P: B, Fitch: B-, Moody’s: B3), the largest low-cost and best-fare airline in Latin America announces its preliminary air traffic figures for May 2015. Comparisons refer to May 2014 and 5M14. GOL Highlights The domestic load factor in May was 77.0% , up 1.6 p.p. year-over-year. For the first five months of 2015 and in the last 12 months (LTM), the rate was 78.7% , an increase of 2.2 p.p. and 4.3 p.p , respectively . Domestic demand in May increased by 4.3% year-over-year. From January to May 2015 and in the LTM, domestic demand rose 4.7% , and 5.4% , respectively, compared to the same periods in 2014. Domestic capacity rose 2.2% in May and 1.8% in 2015. In the LTM, supply dropped 0.4% compared to the same period of 2014. GOL reaffirms its zero growth guidance for 2015. International demand in May grew 3.4% , leading to a load factor of 67.3% representing a decline of 0.7 p.p. versus May 2014. For the year, demand increased 14.1% and in the LTM, the expansion was 21.8% compared to the same periods in 2014. The number of passengers transported totaled million in May, 16.5 million in the year to date and million in the LTM. The fares charged in May remained at stable levels over April 2015. Operating Data* May/15 May/14 % Var. 5M15 5M14 % Var. LTM 15 LTM 14 % Var. Total System ASK (mm) 2.5% 3.1% 1.4% RPK (mm) 4.2% 5.7% 7.1% Load Factor 75.8% 74.5% 1.3 p.p 77.7% 75.8% 1.9 p.p 77.7% 73.6% 4.1 p.p Pax on board 0.6% 2.5% 5.5% Domestic Market ASK (mm) 2.2% 1.8% -0.4% RPK (mm) 4.3% 4.7% 5.4% Load Factor 77.0% 75.4% 1.6 p.p 78.7% 76.5% 2.2 p.p 78.7% 74.4% 4.3 p.p Pax on board 0.7% 2.2% 5.0% International Market ASK (mm) 4.4% 13.1% 15.0% RPK (mm) 3.4% 14.1% 21.8% Load Factor 67.3% 68.0% -0.7 p.p 71.2% 70.5% 0.7 p.p 71.3% 67.3% 4.0 p.p Pax on board -1.1% 7.9% 15.0% *Source: National Civil Aviation Agency (ANAC) and company for the current month. 1 GOL Linhas Aéreas Inteligentes S.A Traffic Report ABOUT GOL LINHAS AÉREAS INTELIGENTES S.A. GOL Linhas Aéreas Inteligentes, the largest low-cost and best-fare airline in Latin America, offers around 910 daily flights to 72 destinations, 16 of which international in South America, the Caribbean and the United States, using a young, modern fleet of Boeing 737-700 and 737-800 Next Generation aircraft, the safest, most efficient and most economical of their type. The SMILES loyalty program allows members to accumulate miles and redeem tickets to more than 700 locations around the world via flights with foreign partner airlines. The Company also operates Gollog, a logistics service which retrieves and delivers cargo and packages to and from more than 3,500 cities in Brazil and six abroad. With its portfolio of innovative products and services, GOL Linhas Aéreas Inteligentes offers the best cost-benefit ratio in the market. 2 GOL Linhas Aéreas Inteligentes S.A 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. Date: June 22 , 2015 GOL LINHAS AÉREAS INTELIGENTES S.A. By: /S/ Edmar Prado Lopes Neto Name: Edmar Prado Lopes Neto Title:Investor Relations Officer FORWARD-LOOKING STATEMENTS This press release may contain forward-looking statements. These statements are statements that are not historical facts, and are based on management's current view and estimates offuture economic circumstances, industry conditions, company performance and financial results. The words "anticipates", "believes", "estimates", "expects", "plans" and similar expressions, as they relate to the company, are intended to identify forward-looking statements. Statements regarding the declaration or payment of dividends, the implementation of principal operating and financing strategies and capital expenditure plans, the direction of future operations and the factors or trends affecting financial condition, liquidity or results of operations are examples of forward-looking statements. Such statements reflect the current views of management and are subject to a number of risks and uncertainties. There is no guarantee that the expected events, trends or results will a ctually occur. The statements are based on many assumptions and factors, including general economic and market conditions, industry conditions, and operating factors. Any changes in such assumptions or factors could cause actual results to differ materially from current expectations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-D ASSET-BACKED ISSUER DISTRIBUTION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the monthly distribution period from November 1, 2012 to November 30, 2012 Commission File Number of issuing entity: 333-159922-01 BMW VEHICLE OWNER TRUST 2010-A (Exact name of issuing entity as specified in its charter) Commission File Number of depositor: 333-159922 BMW FS SECURITIES LLC (Exact name of depositor as specified in its charter) BMW FINANCIAL SERVICES NA, LLC (Exact name of sponsor as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization of the issuing entity) 22-3784653 (I.R.S. Employer Identification No.) c/o BMW Financial Services NA, LLC 300 Chestnut Ridge Road Woodcliff Lake, NJ 07677 (Address of principal executive offices of issuing entity) (Zip Code) 201-307-4000 (Telephone number including area code) Not Applicable (Former name, former address, if changed since last report) Registered/reporting pursuant to (check one) Name of exchange Title of class Section 12(b) Section 12(g) Section 15(d) (If Section 12(b)) Fixed Rate ClassA-1 Notes o o þ Fixed Rate ClassA-2 Notes o o þ Fixed Rate Class A-3 Notes o o þ Fixed Rate ClassA-4 Notes o o þ 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 12months (or for such shorter period that the registrant was required to file such reports), and (2)has been subject to such filing requirements for the past 90days. Yes þ No o PART I — DISTRIBUTION INFORMATION Item1. Distribution and Pool Performance Information. Response to Item 1 is set forth in Exhibit 99.1. There is no activity to report under Rule 15Ga-1(a) under the Securities Exchange Act of 1934 with respect to BMW Vehicle Owner Trust 2010-A for the distribution period commencing on November 1, 2012 and ending on November 30, 2012.BMW Financial Services NA, LLC (CIK # 0001541188), as securitizer, most recently filed a Form ABS-15G on February 3, 2012 with respect to all asset-backed securities sponsored by it, including those securities issued by BMW Vehicle Owner Trust 2010-A. PART II — OTHER INFORMATION Item2. Legal Proceedings. None. Item3. Sales of Securities and Use of Proceeds. None. Item4. Defaults Upon Senior Securities. None. Item5. Submission of Matters to a Vote of Security Holders. None. Item6. Significant Obligors of Pool Assets. No updates to report. Item7. Significant Enhancement Provider Information. None. Item8. Other Information. None. Item9. Exhibits. (a) The following is a list of documents filed as part of this Report on Form 10-D: Exhibit 99.1Statement relating to the December 26, 2012 distribution. (b) The exhibit required to be filed by the registrant pursuant to Item 601 of Regulation S-K is listed above and in the Exhibit Index that immediately follows the signature page hereof. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: January 2, 2013 BMW VEHICLE OWNER TRUST 2010-A (Issuing Entity) By:BMW Financial Services NA, LLC, solely as servicer By:/s/ Joachim Hensel Name: Joachim Hensel Title:Vice President – Finance & CFO EXHIBIT INDEX Exhibit Number Description Statement relating to the December 26, 2012 distribution.

Exhibit 95 During 2015: (i) The total number of violations of mandatory health or safety standards that could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard under section 104 of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 814) for which the operator received a citation from the Mine Safety and Health Administration 6. (ii) The total number of orders issued under section 104(b) of such Act (30 U.S.C. 814(b)) 0. (iii) The total number of citations and orders for unwarrantable failure of the mine operator to comply with mandatory health or safety standards under section 104(d) of such Act (30 U.S.C. 814(d)) 2 (iv) The total number of citations and orders for the use of untrained miners under section 104(g) of such Act (30 U.S.C. 814(g)) 1 (v) The total number of flagrant violations under section 110(b)(2) of such Act (30 U.S.C. 820(b)(2)) 0 (vi) The total number of imminent danger orders issued under section 107(a) of such Act (30 U.S.C. 817(a)) 1. Historically, the Company outsourced standby emergency mine rescue services to a third-party. Because that third-party terminated its agreement with the Company to provide mine rescue services, MSHA, during the third quarter, issued an order suspending underground mine operations until a new provider of such services was in place and imposed a fine, which the Company is contesting. On November 12, 2015, management contracted with a new standby emergency mine rescue services company and will be able to resume underground operations. Because the Company had largely completed its underground infrastructure work and had reduced underground mining staff consistent therewith and has ample stockpiles of iron oxide and halloysite for its near-term expected requirements, the suspension did not have a material effect on the Company’s operations or prospects (viii) The total dollar value of proposed assessments from the Mine Safety and Health Administration under such Act (30 U.S.C. 801 et seq. ) $42,428. (ix) The total number of mining-related fatalities 0. (2) A list of coal or other mines, of which the registrant or a subsidiary of the registrant is an operator, that receive written notice from the Mine Safety and Health Administration of (i) A pattern of violations of mandatory health or safety standards that are of such nature as could have significantly and substantially contributed to the cause and effect of coal or other mine health or safety hazards under section 104(e) of such Act (30 U.S.C. 814(e)); or (ii) The potential to have such a pattern 0 (3) Any pending legal action before the Federal Mine Safety and Health Review Commission involving such coal or other mine 0. 1. Contests of citations and orders referenced in Subpart B of 29 CFR part 2700 0 2. Contests of proposed penalties referenced in Subpart C of 29 CFR part 2700 0; 3. Complaints for compensation referenced in Subpart D of 29 CFR part 2700 0; 4. Complaints of discharge, discrimination or interference referenced in Subpart E of 29 CFR part 2700 0; 5. Applications for temporary relief referenced in Subpart F of 29 CFR part 2700 0 and 6. Appeals of judges' decisions or orders to the Federal Mine Safety and Health Review Commission referenced in Subpart H of 29 CFR part 2700 0.

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 March 13, 2012 Date of report (Date of earliest event reported) VRDT CORPORATION (Exact name of registrant as specified in its Charter) Delaware (State or other jurisdiction of incorporation or organization) 000-52677 45-2405975 (Commission File Number) (IRS EIN) 12223 Highland Avenue, Suite 106-542, Rancho Cucamonga, California 91739 (Address of principal executive offices) (909) 786-1981 (Registrant’s telephone number) Verdant Automotive Corporation (Former Name of Registrant) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): () Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) () Soliciting material pursuant to Rule 14a-12(b) under the Exchange Act (17 CFR 240.14a-12(b)) () Pre-commencement communications pursuant to Rule 14d-2(b) under the exchange Act (17 CFR 240.14d-2(b)) () Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 7.01Regulation FD Disclosure. On March 13, 2012, Registrant issued a press release announcing the memorandum of agreement entered into with Harbin Coslight Power Co., Ltd., a China corporation, as disclosed and set forth more fully in Issuer’s Current Report on Form 8-K filed on February 9, 2012, and incorporated by reference herein. The full text of the press release is furnished as Exhibit 99.1 to this Form 8-K. Pursuant to General Instruction B.2 of Form 8-K, the information furnished in this Item 7.01, including Exhibit 99.1 attached hereto, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liability provisions of that section, nor shall such information be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as may be expressly set forth by specific reference in such a filing. Cautionary Statement Regarding Forward-Looking Statements Statements made in this Report that are not historical facts may constitute forward-looking statements that are subject to risks and uncertainties that could cause actual results to differ materially from those discussed. Such risks and uncertainties include but are not limited to those discussed in this report and in Registrant's other reports filed with the Securities and Exchange Commission. Words such as “expects,” “may,” “will,” “anticipates,” “intends,” “plans,” “believes,” “seeks,” “estimates,” and similar expressions identify forward-looking statements. Potential investors, and the general public, are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this report. Registrant is under no duty to update any of the information in this report. ITEM 9.01 Financial Statements and Exhibits (d) Exhibits Exhibit 99.1 Press Release issued on March 13, 2012, furnished pursuant to Item 7.01 of this report. 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. Dated: March 13, 2012 VRDT CORPORATION (Registrant) By: /s/ Dan Elliott Dan Elliott Chief Executive Officer

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 SCHEDULE 13G Under the Securities Exchange Act of 1934* QUOTIENT LIMITED (Name of Issuer) Ordinary Shares, no par value (Title of Class of Securities) G73268107 (CUSIP Number) December 31, 2014 (Date of Event Which Requires Filing of This Statement) Check the appropriate box to designate the rule pursuant to which this Schedule is filed: x Rule 13d-1(b) o Rule 13d-1(c) o Rule 13d-1(d) *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required in the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). Page 1 of 6 CUSIP No.G73268107 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Sio Capital Management, LLC 20-4586565 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (see instructions) (a)o (b)o 3 SEC USE ONLY 4 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH1: 5 SOLE VOTING POWER 0 6 SHARED VOTING POWER 7 SOLE DISPOSITIVE POWER 0 8 SHARED DISPOSITIVE POWER 9 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 10 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES (see instructions) o 11 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) 9.5%2 12 TYPE OF REPORTING PERSON (see instructions) IA 2 Based on 16,946,528 ordinary shares outstanding as of February 10, 2014, as reported in Quotient Limited’s Form 10-Q filed with the SEC for the quarterly period ended December 31, 2014.The number of ordinary shares reported in Item 5-9 and 11 consists of 1,212,850 of ordinary shares and 443,599 shares issuable by Quotient Limited upon exercise of the warrants held.All percentages of beneficial ownership presented herein in Item 11 are calculated after giving effect to the issuance of the shares pursuant to the exercise of such warrants held.The 16,946,528 outstanding ordinary shares reported does not include the potential shares from the exercise of warrants.Accordingly, the denominator used to calculate the percentage of beneficial ownership was 17,390,127 shares outstanding. Page 2 of 6 Item 1(a). Name of Issuer: Quotient Limited Item 1(b). Address of Issuer’s Principal Executive Offices: Pentlands Science Park Bush Loan, Penicuik, Midlothian EH26 0PZ, United Kingdom Item 2(a). Name of Person Filing: This Statement is filing on behalf of Sio Capital Management, LLC. (the “Reporting Person” or “Sio”) Sio is a registered investment adviser to certain affiliated funds that directly hold the shares of Common Stock to which this statement relates for the benefit of their respective investors, and in such capacity Sio has voting and dispositive power over such shares. Item 2(b). Address of Principal Business Office or, if none, Residence: 535 Fifth Avenue, Suite 910 New York, New York 10017 Item 2(c). Citizenship: Sio is a Delaware Limited Liability Company. Item 2(d). Title of Class of Securities: Ordinary Shares, no par value Item 2(e). CUSIP Number: G73268107 Page 3 of 6 Item 3. If this Statement is filed pursuant to 240.13d-1(b) or 240.13d-2(b) or (c), check whether the person filing is a: (a) o Broker or dealer registered under Section 15 of the Act; (b) o Bank as defined in Section 3(a)(6) of the Act; (c) o Insurance company as defined in Section 3(a)(19) of the Act; (d) o Investment company registered under Section 8 of the Investment Company Act of 1940; (e) x An investment adviser in accordance with Rule 13d-1(b)(1)(ii)(E); (f) o An employee benefit plan or endowment fund in accordance with Rule 13d-1(b)(1)(ii)(F); (g) o A parent holding company or control person in accordance with Rule 13d-1(b)(1)(ii)(G); (h) o A savings association as defined in Section 3(b) of the Federal Deposit Insurance Act (12 U.S.C. 1813); (i) o A church plan that is excluded from the definition of an investment company under section 3(c)(14) of the Investment Company Act of 1940; (j) o A non-U.S. institution in accordance with Rule 240.13d-1(b)(1)(ii)(J); (k) o Group, in accordance with Rule 240.13d-1(b)(1)(ii)(K). If filing as a non-U.S. institution in accordance with Rule 240.13d-1(b)(1)(ii)(J), please specify the type of institution:       Item 4. Ownership. Provide the following information regarding the aggregate number and percentage of the class of securities of the issuer identified in Item 1. (a) Amount Beneficially Owned: (b) Percent of Class: (c) Number of shares as to which such person has: (i) sole power to vote or to direct the vote: (ii) shared power to vote or to direct the vote: (iii) sole power to dispose or to direct the disposition of: (iv) shared power to dispose or to direct the disposition of: The information set forth in Item 5 through 9 and 11 of the cover pages to this Schedule 13G is incorporated herein by reference. Page 4 of 6 Item 5. Ownership of Five Percent or Less of a Class. N/A If this statement is being filed to report the fact that as of the date hereof the reporting person has ceased to be the beneficial owner of more than five percent of the class of securities, check the following o. Item 6. Ownership of More than Five Percent on Behalf of Another Person. Various advisory clients of the Reporting Person have the right to receive or the power to direct the receipt of dividends from or the proceeds from the sale of the ordinary shares of Quotient Limited in their accounts with the Reporting Person.No such person has such interest relating to more than 5% of the outstanding ordinary shares of Quotient Limited. Item 7. Identification and Classification of the Subsidiary Which Acquired the Security Being Reported on by the Parent Holding Company. N/A Item 8. Identification and Classification of Members of the Group. N/A Item 9. Notice of Dissolution of Group. N/A Item 10. Certification. By signing below I certify that, to the best of my knowledge and belief, the securities referred to above were acquired and are held in the ordinary course of business and were not acquired and are not held for the purpose of and do not have the effect of changing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having such purpose or effect for the time being. Sio and Sio GP, LLC (the “GP”) act as investment adviser and general partner, respectively, to various clients that are the records owners of the Ordinary Shares reported on this Schedule 13G.Because Sio’s investment discretion with respect to such clients is subject to oversight by the GP, the GP may be deemed to be the beneficial owner of the Ordinary Shares of the Issuer owned by such clients.In addition, both Sio and the GP are controlled by Michael Castor.As such, he may be deemed to control the voting and dispositive decisions with respect to, and therefore be the beneficial owner of, the shares of Common Stock reported on this Schedule 13G.Neither the filing of this Schedule 13G nor any of its contents shall be deemed to constitute an admission by the GP or Michael Castor that such person is the beneficial owner of any of the equity securities referred to herein for purposes of Section 13(d) of the Exchange Act, or for any other purpose, and such beneficial ownership is expressly disclaimed. Page 5 of 6 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. 2/13/2015 Date /s/ Albert Vigneau Signature Chief Financial Officer Name/Title Page 6 of 6

EXHIBIT 32.2 CERTIFICATION PURSUANT TO 18 USC, SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report of Premier Biomedical, Inc. (the “Company”) on Form 10-Q for the quarter ended June 30, 2013, as filed with the Securities and Exchange Commission on or about the date hereof (the “Report”), I, Heidi H. Carl, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Sec. 1350, as adopted pursuant to Sec. 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934; and Information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Dated: August 12, 2013 By: /s/ Heidi H. Carl Heidi H. Carl Chief Financial Officer A signed original of this written statement required by Section 906 has been provided to Premier Biomedical, Inc. and will be retained by Premier Biomedical, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO §240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO §240.13d-2(a) (Amendment No.6)1 Benihana, Inc. (Name of Issuer) Common Stock, par value $0.10 per share (Title of Class of Securities) (CUSIP Number) STEVEN WOLOSKY, ESQ. OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP Park Avenue Tower 65 East 55th Street New York, New York 10022 (212) 451-2300 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 16, 2010 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨. Note:Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.See §240.13d-7 for other parties to whom copies are to be sent. 1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO. 082047101 1 NAME OF REPORTING PERSON TRUST U/A JUNE 8, 1998, BETWEEN ROCKY H. AOKI, AS GRANTOR, AND KEVIN AOKI, KANA AOKI NOOTENBOOM F/K/A KANA GRACE AOKI, KYLE AOKI AND KENNETH PODZIBA, AS TRUSTEES. I.R.S. IDENTIFICATION 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)x (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS AF 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER - 0 - 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.1% 14 TYPE OF REPORTING PERSON OO 2 CUSIP NO. 082047101 1 NAME OF REPORTING PERSON BENIHANA OF TOKYO, INC. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)x (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS OO 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER - 0 - 8 SHARED VOTING POWER 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.1% 14 TYPE OF REPORTING PERSON CO 3 CUSIP NO. 082047101 1 NAME OF REPORTING PERSON MICHAEL W. KATA 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)x (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER - 0 - 8 SHARED VOTING POWER - 0 -1 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER - 0 -1 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 -1 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON IN 1 See Item 5. 4 CUSIP NO. 082047101 1 NAME OF REPORTING PERSON KENNETH J. PODZIBA 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)x (b)o 3 SEC USE ONLY 4 SOURCE OF FUNDS 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) ¨ 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 7 SOLE VOTING POWER - 0 - 8 SHARED VOTING POWER - 0 -1 9 SOLE DISPOSITIVE POWER - 0 - 10 SHARED DISPOSITIVE POWER - 0 -1 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 -1 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES o 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0% 14 TYPE OF REPORTING PERSON IN 2 See Item 5. 5 CUSIP NO. 082047101 The following constitutes Amendment No. 6 to the Schedule 13D filed by the undersigned (“Amendment No. 6”).This Amendment No. 6 amends the Schedule 13D as specifically set forth.Michael W. Kata and Kenneth J. Podziba are hereby added as Reporting Persons to the Schedule 13D. Item 2. Identity and Background. Item 2 is hereby amended to add the following: Michael W. Kata (“Mr. Kata”) is a nominee for the Board of Directors of the Issuer and his principal occupation is serving as Vice President of Benihana Ono Restaurant Holdings B.V. (“Benihana Ono”) and special consultant to the Board of Supervisory Directors of Benihana Ono.The principal business address of Mr. Kata is 560 South Lake Dasha Drive, Plantation, Florida 33324.Mr. Kata is a citizen of the United States of America. Kenneth J. Podziba (“Mr. Podziba”) is a nominee for the Board of Directors of the Issuer and his principal occupation is serving as President and Chief Executive Officer of Bike New York and as a Vice President of BOT.The principal business address of Mr. Podziba is 422 East 72nd Street, New York, New York 10021.Mr. Podziba is a citizen of the United States of America. (d)Neither of Messrs. Kata or Podziba has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e)Neither of Messrs. Kata or Podziba has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 4. Purpose of Transaction. Item 4 is hereby amended to add the following: On July 16, 2010, BOT delivered a letter to the Issuer nominating Michael W. Kata and Kenneth J. Podziba (collectively, the “Common Stock Nominees”), as set forth therein, for election to the Issuer’s Board of Directors as Common Stock directors at the Issuer’s 2010 annual meeting of stockholders, or any other meeting of stockholders held in lieu thereof, and any adjournments, postponements, reschedulings or continuations thereof (the “Annual Meeting”).A copy of the letter is attached hereto as Exhibit 99.1 and is incorporated herein by reference. Item 5. Interest in Securities of the Issuer. Item 5(a) - (c) is hereby amended and restated to read as follows: The aggregate percentage of shares of Common Stock reported owned by each person named herein is based upon 5,649,139 Shares outstanding, as of June 4, 2010, which is the total number of shares of Common Stock outstanding as reported in the Issuer’s Annual Report on Form 10-K, filed with the Securities and Exchange Commission on June 11, 2010. As of the close of business on July 15, 2010, BOT owned directly 2,153,744 shares of Common Stock, constituting approximately 38.1% of the shares of Common Stock outstanding.The Trust, as the sole shareholder of BOT, may be deemed to beneficially own the 2,153,744 shares of Common Stock owned by BOT, constituting approximately 38.1% of the shares of Common Stock outstanding. 6 CUSIP NO. 082047101 As of the close of business on July 15, 2010, neither of Messrs. Kata or Podziba directly owned any shares of Common Stock.Each of Messrs. Kata and Podziba, as a member of a “group” with the other Reporting Persons for purposes of Rule 13d-5(b)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), may be deemed to beneficially own the 2,153,744 shares of Common Stock owned by BOT, constituting approximately 38.1% of the shares of Common Stock outstanding. There were no transactions in the Issuer’s securities by the Reporting Persons in the past 60 days. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Item 6 is hereby amended to add the following: On July 16, 2010, the Reporting Persons entered into a Joint Filing and Solicitation Agreement in which, among other things, (a) the parties agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer, (b) the parties agreed to solicit proxies or written consents for the election of the Common Stock Nominees, or any other person(s) nominated by BOT, to the Issuer’s Board of Directors at the Annual Meeting (the “Solicitation”), and (c) BOT agreed to bear all expenses incurred in connection with the Reporting Persons’ activities, including approved expenses incurred by any of the parties in connection with the Solicitation, subject to certain limitations.A copy of the Joint Filing and Solicitation Agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference. Pursuant to letter agreements, BOT has agreed to indemnify Messrs. Kata and Podziba against claims arising from the solicitation of proxies from the Issuer’s stockholders in connection with the Annual Meeting.The form of indemnification letter agreement is attached hereto as Exhibit 99.3 and is incorporated herein by reference. Item 7. Material to be Filed as Exhibits. Item 7 is hereby amended to include the following exhibits: Exhibit 99.1 Nomination Letter. Exhibit 99.2 Joint Filing and Solicitation Agreement by and among Trust U/A June 8, 1998, between Rocky H. Aoki, as Grantor, and Kevin Aoki, Kana Aoki Nootenboom f/k/a Kana Grace Aoki, Kyle Aoki and Kenneth Podziba, as Trustees, Benihana of Tokyo, Inc., Michael W. Kata and Kenneth J. Podziba, dated July 16, 2010. Exhibit 99.3 Form of Indemnification Letter Agreement. 7 CUSIP NO. 082047101 SIGNATURES After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated:July 16, 2010 TRUST U/A JUNE 8, 1998, BETWEEN ROCKY H. AOKI, AS GRANTOR, AND KEVIN AOKI, KANA AOKI NOOTENBOOM F/K/A KANA GRACE AOKI, KYLE AOKI AND KENNETH PODZIBA, AS TRUSTEES. I.R.S. IDENTIFICATION By: /s/ Kenneth J. Podziba Name: Kenneth J. Podziba Title: Trustee BENIHANA OF TOKYO, INC. By: /s/ Kenneth J. Podziba Name: Kenneth J. Podziba Title: Vice President /s/ Michael W. Kata MICHAEL W. KATA /s/ Kenneth J. Podziba KENNETH J. PODZIBA 8

Exhibit 10.118 BROCADE SALES LEADER PLAN October 28, 2011 (Effective as of fiscal year 2012) PURPOSE The Brocade Sales Leader Plan is designed to link incentive compensation with Company performance. PERFORMANCE PERIOD AND PAYOUT PERIOD Performance against Company and individual objectives is measured annually (according to the Company’s fiscal year) (Plan Period), with the exception of up to $100K of the revenue target incentive which may be paid quarterly up to $25K per quarter (see Revenue Quarterly Target Incentive on page 3 of this document for full details). All other payout of earned cash bonuses, if any, occurs on an annual basis. ELIGIBILITY The Senior Vice President Worldwide Sales is the only eligible participant in the Sales Leader Plan Program. The Senior Vice President Worldwide Sales shall not be eligible to participate in the Company’s FY12 Senior Leadership Plan (SLP) or FY12 “Rev” It Up Plan. Participant must be employed in a Sales Leader Plan eligible position as a regular (full-time or part-time) employee at the end of each quarter, if eligible to receive a Revenue Quarterly Target Incentive payout, and at the end of the fiscal year to be eligible to earn the remainder of the annual Sales Leader Plan Payout. PARTICIPANT PERFORMANCE CONTRACTS As each Plan Period begins, Participant must complete a VP Performance Contract. Performance Contracts should be tied to Company and departmental goals as outlined by the Board of Directors (i.e., Company priorities and initiatives). All goals must be tied to overall Company objectives and have defined measurements. Before the Performance Contract for the Senior Vice President Worldwide Sales is final, it shall be reviewed and approved by Finance, Human Resources, and the CEO. COMPANY PERFORMANCE & SALES LEADER PLAN FUNDING Each Plan Period, Brocade’s Board of Directors will approve Brocade’s fiscal year business operating plan, including a Revenue target (Target Revenue), a Gross Margin target (Target Gross Margin) and a Sales Expense Budget (Target Sales Expense Savings), for the Company to achieve during the Plan Period. At the end of each quarter, for the Revenue Quarterly Target Incentive, and at the end of each annual Plan Period, Brocade will determine amounts to be paid under the Sales Leader Plan based on the actual performance on a pre-bonus basis (Actual Performance) achieved by Brocade   1. during the Plan Period (Actual Revenue, Actual Gross Margin and Actual Sales Expenses) relative to the Target Revenue (Revenue Percentage), Target Gross Margin (Gross Margin Percentage) and Target Sales Expenses (Sales Expense Savings Percentage). The Actual Revenue, Actual Gross Margin and Actual Sales Expenses will be communicated following the end of each Plan Period. PARTICIPANT INCENTIVE TARGET PERCENTAGE The Participant’s Annual Incentive Target Percentage is 200% of the Participant’s annual base salary and is approved by the Company’s Compensation Committee. SALES LEADER PLAN PAYOUTS On an annual basis, the Compensation Committee reviews and approves the formula for cash bonus payouts and actual Sales Leader Plan bonus payouts to any person who is an officer of the Company within the meaning of Section 16 of the promulgated thereunder (Section 16 Officer). Payouts under the Sales Leader Plan, including the revenue element, gross margin element, and sales expense element, are subject to a minimum bonus payout threshold for revenue (Minimum Revenue Threshold), gross margin (Minimum GM Threshold) and sales expenses (Minimum Sales Expense Savings Threshold), respectively, as determined by the Compensation Committee. Notwithstanding the foregoing, Participants will not be eligible for any Multi-Factor Bonus Payout under the Sales Leader Plan in the event that revenue is less than the Minimum Revenue Threshold. Subject to the Minimum Revenue Threshold and except as otherwise agreed upon by: (i) the Compensation Committee for the Section 16 officers, and (ii) the Participant, the Total Sales Leader Plan cash bonus payout is calculated based on the following formula (less applicable taxes and deductions): Total Sales Leader Plan Payout = Actual Revenue Quarterly Target Incentive that is earned + Multi-Factor Bonus Payout Multi-Factor Bonus Payout = ((Actual Performance Multiplier) x (Individual Performance Multiplier) x (Annual Incentive Target %) x (Annual Base Salary)) – (Revenue Quarterly Target Incentive) Actual Performance Multiplier. The Actual Performance Multiplier for the plan Participant is equal to the sum of: (i) Revenue Payout Percentage multiplied by 50%, plus (ii) Gross Margin (GM) Payout Percentage multiplied by 25%, plus (iii) Sales Expense Savings Payout Percentage multiplied by 25%. Individual Performance. The Individual Performance Multiplier for the plan Participant is based on: (i) Individual performance relative to achieving individual performance, departmental goals and leadership competencies, and may range from zero (0) to 110%.   2. The Revenue Payout Percentage, Gross Margin (GM) Payout Percentage and Sales Expense Savings Payout Percentage are calculated as follows: Revenue Payout Percentage:     •   If the Revenue Percentage is below the Minimum Revenue Threshold, the Revenue Payout Percentage shall be 0% (zero).     •   If the Revenue Percentage is equal to or above the Target Revenue Threshold, the Revenue Payout Percentage shall be equal to 100% plus three (3) percentage points for each Revenue Percentage point above the Target Revenue Threshold.     •   If the Revenue Percentage is equal to or above the Minimum Revenue Threshold but below the Target Revenue Threshold, the Revenue Payout Percentage shall be equal to 100% less two (2) percentage points for each Revenue Percentage point below the Target Revenue Threshold. Gross Margin (GM) Payout Percentage:     •   If the GM Percentage is below the Minimum GM Threshold, the GM Payout Percentage shall be 0% (zero).     •   If the GM Percentage is equal to or above the Target GM Threshold, the GM Payout Percentage shall be equal to 100% plus three (3) percentage points for each GM Percentage point above the Target GM Threshold.     •   If the GM Percentage is equal to or above the Minimum GM Threshold but below the Target GM Threshold, the GM Payout Percentage shall be equal to 100% less two (2) percentage points for each GM Percentage point below the Target GM Threshold. Sales Expense Savings Payout Percentage:     •   If the Sales Expenses are above the Target Sales Expense Budget, the Sales Expense Savings Payout Percentage shall be 0% (zero).     •   If the Sales Expense Savings Percentage is equal to or exceeds the Target Sales Expense Savings Threshold, the Sales Expense Savings Payout Percentage shall be equal to 100% plus three (3) percentage points for each Sales Expense Savings Percentage point above the Target Sales Expense Savings Threshold.     •   If the Sales Expense Savings Percentage is equal to or below the Minimum Sales Expense Savings Threshold and below the Target Sales Expense Budget, the Sales Expense Savings Payout Percentage shall be equal to 100% less two (2) percentage points for each Sales Expense Savings Percentage point below the Target Sales Expense Savings Threshold. Fractional amounts shall be interpolated based on the above scaling. The applicable minimum threshold for Revenue (Minimum Revenue Threshold) is 90%, the applicable minimum threshold for GM (Minimum GM Threshold) is 80%, and the applicable minimum threshold for Sales Expense Savings (Minimum Sales Expense Savings Threshold) is 10%. The Revenue Payout Percentage, Gross Margin Payout Percentage and Sales Expense Savings Payout Percentage are uncapped for overachievement. Revenue Quarterly Target Incentive. There is a Revenue Quarterly Target Incentive of $100K, which is included as part of the total annual revenue target incentive. Other than the initial $25K   3. payment, which shall be automatically deemed earned, this $100K portion of the incentive may be earned and paid in increments of $25K/quarter only if 100% of the quarterly revenue target is achieved for the preceding quarter. Example, at the beginning of Q1, $25K will automatically be paid to the participant within 8 weeks of the beginning of Q1; if the Q1 revenue target is 100% achieved, another $25K will be paid to the participant within eight (8) weeks of the beginning of Q2; if the Q2 revenue target is 100% achieved, another $25K will be paid to the participant within eight (8) weeks of the beginning of Q3; if the Q3 revenue target is 100% achieved, a final $25K will be paid to the participant within eight (8) weeks of the beginning of Q4. If, however, the Q1 revenue target is not achieved at 100%, then the $25K paid at the beginning of Q2 is forfeited. The same analysis would be performed in Q2 and Q3 to determine if the revenue target for the preceding quarter was not achieved at 100%. Individual Performance Percentage Multiplier. On an annual basis, the Compensation Committee reviews and approves the Individual Performance Percentage (with input from the CEO) for Section 16 Officers. The Individual Performance Percentage can range from 0% (zero) to 110%. Bonuses will be calculated using the annual base salary and Annual Incentive Target Percentage as of the last day of the Plan Period, except as set forth above or otherwise indicated in writing by Brocade. Program payouts are generally made within eight (8) weeks of the beginning of each quarter, if eligible and within eight (8) weeks following the conclusion of the 12-month Plan Period. ADMINISTRATIVE PROCEDURES Compensation Committee Approval The Compensation Committee reserves the right to decrease or eliminate bonus otherwise indicated. New Hires and Promotions A Participant who is new to the company or who is promoted into the Sales Leader Plan must complete a Performance Contract within 60 days of beginning in the new position. Payouts will be pro-rated for Participants who are hired or transferred into the Sales Leader Plan during any Plan Period. Position/Salary Factor Payout will be based on the Participant’s annual base salary and job position on the last day of the Plan Period. Terminations: Any Participant whose employment terminates for any reason before the end of the fiscal year is not eligible to earn a Sales Leader Plan payout, other than the portion of the $100K Revenue Quarterly Target Incentive that may already have been paid at that point. Leaves of Absences, Disability or Death: In the event of the Participant’s death, disability time off, or leave of absence, Payouts will be made on a pro-rated basis, based on the number of days   4. the Participant was actively working at Brocade. In the event of death, any cash bonus payments will be paid to the Participant’s primary beneficiary as designated in the Participant’s Brocade life insurance plan documentation, if any, or will otherwise be paid to his or her estate. Performance Improvement Plan/Disciplinary Situations (Development Needed): If a Participant, at any time prior to the cash bonus payout 12-month Plan Period, is subject to a performance improvement plan, discipline or demotion, Brocade may, in its sole discretion, reduce or eliminate the cash bonus payment that the Participant would otherwise have been eligible to receive. If, at the time prior to the Payout for a 12-month Plan Period, it is determined that a Participant may be subject to corrective action, discipline or demotion, then Brocade may withhold the entire cash bonus payout, or a portion thereof, until after a final decision on such corrective action has been made. If a Participant is given a performance rating of Development Needed, the Participant will not be eligible to earn a Payout. Only the VP of Human Resources or CEO may approve exceptions to this policy, except that the Compensation Committee must approve exceptions for Section 16 officers. Section 409A: It is intended that any payments made under the Sales Leader Plan will be exempt from the requirements of Section 409A of the Internal Revenue Code of 1986, as amended and the regulations and guidance issued thereunder (collectively, Section 409A), pursuant to the “short-term deferral” exception under Section 409A, and any ambiguities and/or ambiguous terms under the Plan will be interpreted to comply with the requirements of such exception or otherwise comply with the requirements of Section 409A. Each payment under the Sales Leader Plan is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2) of the U.S. Treasury Regulations. Without imposing any obligation, Brocade may, in good faith and without the consent of any Participant, make any amendments to this the Sales Leader Plan and take such reasonable actions which it deems necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition under Section 409A prior to actual payment to any Participant. Other Provisions: Participation in the Sales Leader Plan does not constitute an Participant will be employed by Brocade for any specific period of time, nor is there any agreement for continuing or long-term employment. Terms and conditions regarding the Sales Leader Plan and any participation therein, including, but not limited to, Sales Leader Plan eligibility, Sales Leader Plan funding, and performance and payout criteria and determinations, are subject to change by Brocade at any time in its sole discretion. Brocade and its Board of Directors retain the absolute right to interpret, revise, modify or terminate the Sales Leader Plan at any time in its sole discretion. This Sales Leader Plan supersedes all prior written or oral statements to employees regarding the Sales Leader Plan for the periods contemplated hereunder.   5.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. )* Homeland Precious Metals Corp. (Name of Issuer) Common (Title of Class of Securities) 43741L305 (CUSIP Number) Bruce Edmund Johnstone 4152 Meridian Street, Suite 105-512, Bellingham, WA 98226 Telephone:(775) 770-0872 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 1, 2011 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. : 43741L305 1.Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only). Bruce Edmund Johnstone 2.Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) 3.SEC Use Only 4.Source of Funds (See Instructions):OO 5.Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) 6.Citizenship or Place of Organization:Canadian Number of Shares Beneficially Owned by Each Reporting Person With 7.Sole Voting Power:0 8.Shared Voting Power:0 10.Shared Dispositive Power:0 9.Sole Dispositive Power:0 11. Aggregate Amount Beneficially Owned by Each Reporting Person:0 12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) 13.Percent of Class Represented by Amount in Row (11):0% 14.Type of Reporting Person (See Instructions):IN Item 1.Security and Issuer Security:Common Stock, no par value (“Common Stock”) (CUSIP No. 43741L305) Issuer:Homeland Precious Metals Corp. 336 – 36th Street Suite 334 Bellingham, WA98225 Item 2.Identity and Background (a)Name of Person Filing:Bruce Edmund Johnstone (b)Address:4152 Meridian Street, Suite 105-512 Bellingham, WA98226 (c)Self Employed Businessman (d)No. (e)No. (f)Canadian. Item 3.Source and Amount of Funds or Other Consideration. No funds were involved in the disposition of the Shares.Transferred to new officer/director. Item 4. Purpose of Transaction. Mr. Johnstone has stepped down as officer and director of the Company and his shares were transferred to the incoming officer/director at no cost.Mr. Johnstone no longer has any shares in the Company and is no longer involved with the Company. Item 5.Interest in Securities of the Issuer. 1.Bruce Johnstone (a)Amount Beneficially Owned:0 Percent of Class:0%. (b)Number of shares as to which such person has: (i)Sole power to vote or direct the vote: 0 (ii)Shared power to vote or direct the vote:0 (iii)Sole power to dispose or direct the disposition of: 0 (iv) Shared power to dispose or direct the disposition of: 0 (c) On May 1, 2011 Mr. Johnstone resigned as officer/director of the Company.On the same date, Mr. Jody Samuels accepted the position of officer/director of the Company and Mr. Johnstone transferred all of his shares in the Company to Mr. Samuels by way of a gift.Mr. Johnstone received no funds or consideration of any kind for the transfer of the shares to Mr. Samuels.Mr. Johnstone transferred 1, 001,700 shares to Mr. Samuels, leaving Mr. Johnstone with 0 shares. (d) Not applicable. (e) Mr. Johnstone ceased to be the beneficial owner of more than 5% of the common shares of the Company on May 1, 2011. Item 6.Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. None Item 7.Material to be Filed as Exhibits. None SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date:June 3, 2011 /s/ Bruce Edmund Johnstone Bruce Edmund Johnstone

TYSON FOODS, INC. RESTRICTED STOCK AGREEMENT THIS RESTRICTED STOCK AGREEMENT (the “Agreement”) is made and entered into as of ______________ (the “Grant Date”), by and between TYSON FOODS, INC., a Delaware corporation (the “Company”), and ________________ (the “Employee”) Personnel Number _________________. Subject to the Additional Terms and Conditions attached hereto and incorporated herein by reference as part of this Agreement, the Company hereby awards as of the Grant Date to the Employee the restricted shares (“Restricted Shares”) described below (the “Restricted Stock Grant”) pursuant to the Tyson Foods, Inc. 2000 Stock Incentive Plan (the “Stock Plan”) in consideration of the Employee’s services to be rendered on behalf of the Company as contemplated by the terms of Employee’s most current Employment Agreement with the Company (the “Employment Agreement”).   A. Grant Date:  ______________, 200_   B. Restricted Shares: _________ shares of the Company’s Class A common stock, par value $.10 per share (“Common Stock”).   C. Vesting Schedule:  The Restricted Shares shall vest according to the Vesting Schedule attached hereto as Schedule 1.  The Restricted Shares which have become vested pursuant to the Vesting Schedule are herein referred to as the “Vested Restricted Shares.” IN WITNESS WHEREOF, the Company has executed this Agreement as of the Grant Date set forth above.     TYSON FOODS, INC.:         By:     Title:                                                         ADDITIONAL TERMS AND CONDITIONS OF RESTRICTED STOCK AGREEMENT 1.           Restricted Shares Held in Stock Plan Name.  The Restricted Shares shall be issued in the name of the Stock Plan and held for the account and benefit of the Employee.  The Committee (as defined in the Stock Plan) shall cause periodic statements of account to be delivered to the Employee, at such time or times as the Committee may determine in its sole discretion, showing the number of Restricted Shares held by the Stock Plan on behalf of the Employee.  Subject to other Additional Terms and Conditions, and the terms of the Employment Agreement, the Committee shall cause one or more certificates to be delivered to the Employee as soon as administratively practicable following the date that all or any portion of the Restricted Shares become Vested Restricted Shares. 2.           Condition to Delivery of Vested Restricted Shares. (a) If Employee makes a timely election pursuant to Section 83(b) of the Internal Revenue Code, as a condition to receiving the Vested Restricted Shares Employee must deliver to the Company, within thirty (30) days of making the election pursuant to said Section 83(b) as to all or any portion of the Restricted Shares, either cash or a certified check payable to the Company in the amount of all of the tax withholding obligations (whether federal, state or local), imposed on the Company by reason of the making of an election pursuant to said Section 83(b), (b) If the Employee does not make a timely election pursuant to Section 83(b) of the Internal Revenue Code as to all of the Restricted Shares, the Employee may notify the Company in writing, which notice must be received by the Company at least thirty (30) days prior to the date Restricted Shares become Vested Restricted Shares (or such later date as the Committee may permit), that the Employee wishes to pay in cash all of the tax withholding obligations (whether federal, state or local) imposed on the Company by reason of the vesting of some or all of the Restricted Shares.  As a condition to receiving the Vested Restricted Shares, Employee must deliver to the Company no later than three (3) business days of the vesting either cash or a certified check payable to the Company in the amount of all of the tax withholding obligations (whether federal, state or local) imposed on the Company by reason of the vesting of the Vested Restricted Shares to which the election applies. (c) Internal Revenue Code as provided in Section 2(a), or deliver a timely election to make a  supplemental payment with cash or by certified check for tax withholding obligations as provided in Section 2(b) as to all or a portion of the Vested Restricted Shares, Employee will be deemed to have elected to have the actual number of Vested Restricted Shares reduced by the smallest number of whole shares of Common Stock which, when multiplied by the fair market value of the Common Stock, as determined by the Committee, on the date of the vesting event is sufficient to satisfy the amount of the tax withholding obligations imposed on the Company by reason of the vesting of the such Vested Restricted Shares (the “Withholding Election”).  Employee understands and agrees that Employee’s acceptance of this Restricted Stock Grant will be deemed to be Employee’s election to make a Withholding Election pursuant to this Section 2 and such other consistent terms and conditions prescribed by the Committee. (d) The Committee reserves the right to give no effect to a Withholding Election in which case the Employee will remain obligated as a condition to receiving the Vested Restricted Shares to satisfy applicable tax withholding obligations with cash or by a certified check in the manner provided by the Committee.  If the Committee elects not to give effect to the Withholding Election, it shall provide the Employee with written notice reasonably in advance of the applicable vesting event. 3.           Rights as Stockholder.  Employee, or his permitted transferee under Section 4(d) below, shall have no rights as a stockholder with respect to the Restricted Shares until a stock certificate for the shares is issued in the name of the Stock Plan on the Employee’s behalf.  Once any such stock certificate is issued and during the period that the Stock Plan holds the Restricted Shares, Employee shall be entitled to all rights associated with the ownership of shares of Common Stock not so held, except as follows: (a) if additional shares of Common Stock become issuable to Employee with respect to Restricted Shares due to an event described in Section 6 below, any stock certificate representing such shares shall be issued in the name of the Stock Plan and delivered to the Committee or its representative and those shares of Common Stock shall be treated as additional Restricted Shares and shall be subject to forfeiture to the same extent as the shares of Restricted Shares to which they relate; (b) if cash dividends are paid on any shares of Common Stock subject to the terms of this Agreement, those dividends shall be reinvested in shares of Common Stock and any stock certificate representing such shares shall be issued in the name of the Stock Plan and delivered to the Committee or its representative and those shares of Common Stock shall be treated as additional Restricted Shares and shall be subject to forfeiture to the same extent as any other Restricted Shares; and (c) Employee shall have no rights inconsistent with the terms of this Agreement, such as the restrictions on transfer described in Section 4 below.  Employee shall be entitled to vote all Restricted Shares following issuance of the stock certificate representing those shares. 4.           Vesting, Forfeiture and Restrictions on Transfer of Restricted Shares. (a)           Generally.  Those Restricted Shares which have become Vested Restricted Shares pursuant to the Vesting Schedule shall be considered as fully earned by the Employee, subject to the further provisions of this Section 4 and any provisions of the Employment Agreement, as applicable, and the Company shall deliver certificates to the Employee as soon as administratively practicable following the Vesting Date or other vesting event and the payment of any required taxes pursuant to the terms of Section 2.  Any Restricted Shares which do not become Vested Restricted Shares in accordance with the Vesting Schedule or the provisions of this Section 4 as of the Employee’s Termination of Employment (as defined in the Stock Plan) with the Company and/or its affiliates will be forfeited back to the Company.   (b) Forfeitures upon Termination of Employment.   (i) Termination by Employee.  Except as provided in Sections 4(b)(iii) and (iv), upon a Termination of Employment prior to the Vesting Date effected by the Employee for any reason all Restricted Shares shall be forfeited as of the effective date of such Termination of Employment.   (ii) Termination by Company Other Than for Cause.  Upon a Termination of Employment prior to the Vesting Date effected by the Company for any reason other than Cause (as described in Section 4(b)(v)), upon the Employee’s execution of a Separation Agreement and General Release in favor of the Company after the date of termination the Employee shall become vested in the following number of Restricted Shares: (A)   If less than one-third (1/3) of the period between the Grant Date and the Vesting Date shown on Schedule 1 has elapsed all the Restricted Shares will be forfeited; (B)   If at least one-third (1/3) but less than two-thirds (2/3s) of the period between the Grant Date and the Vesting Date shown on Schedule 1 has elapsed the number of Restricted Shares that become Vested Restricted Shares pursuant to this Section 4(b)(ii)(B) shall be the number that bears the same relation to all Restricted Shares as (1) the number of full calendar months elapsed from the Grant Date to the last date of Employee’s employment bears to (2) the number of full calendar months between the Grant Date and the Vesting Date, and the remaining Restricted Shares shall be forfeited; and (C)   If at least two-thirds (2/3s) of the period between the Grant Date and Vesting Date has elapsed, all of the Restricted Shares shall fully vest and become Vested Restricted Shares. The Vested Restricted Shares shall be delivered within thirty (30) days from the date of the Employee’s execution of a Separation Agreement and General Release in favor of the Company.  Notwithstanding the foregoing provisions of this Section 4(b)(ii), if the Employee refuses to sign, or elects to revoke during any permitted revocation period, the Separation Agreement and General Release, then the vesting of any Restricted Shares pursuant to this Section 4(b)(ii) shall not occur and all Restricted Shares shall be forfeited. (iii)           Retirement.  Upon the Employee’s voluntary Termination of Employment prior to the Vesting Date on or after attaining age 62, (A) if the last date of Employee’s employment is twelve (12) months or less from the Grant Date, all Restricted Shares shall be forfeited; or (B) if the last date of Employee’s employment is at least twelve (12) months and one day from the Grant Date, all of the Restricted Shares shall vest and become Vested Restricted Shares.  The Restricted Shares that vest in accordance with Clause (B) of this Section 4(b)(iii) shall become Vested Restricted Shares as of the last date of Employee’s employment .  Vested Restricted Shares shall be delivered within thirty (30) days after the vesting event. (iv)           Death or Disability.  Upon the Employee’s Termination of Employment prior to the Vesting Date due to death or disability, all of the Restricted Shares shall vest and become Vested Restricted Shares on the last date of Employee’s employment.  Vested Restricted Shares shall be delivered within thirty (30) days after the vesting event.   (v) Termination by Company for Cause.  Upon a Termination of Employment prior to the Vesting Date effected by the Company for Cause (as defined in Employment Agreement), all Restricted Shares shall be forfeited as of the effective date of (c)           Certain Breaches of Employment Agreement. Notwithstanding anything to the contrary herein, if, at any time, the Company determines that the Employee has breached any of the terms, provisions and restrictions imposed upon Employee under the Employment Agreement, all of the Restricted Shares, including any Restricted Shares that have become Vested Restricted Shares, shall be forfeited.  Such forfeiture shall occur without limiting the Company’s other rights and remedies available under the Employment Agreement. (d) Restrictions on Transfer of Restricted Shares.  Employee shall effect no disposition of Restricted Shares prior to the date that an unrestricted certificate for Vested Restricted Shares in his name is delivered to him by the Committee; provided, however, that this provision shall not preclude a transfer by will or the laws of descent and distribution in the event of the death of the Employee. (e)           Legends.  Employee agrees that the Company may endorse any certificates for Restricted Shares or Vested Restricted Shares with such legends to reflect the restrictions provided for herein or otherwise required by applicable federal or state securities laws.  The Company need not register a transfer of the Restricted Shares and may also instruct its transfer agent not to register the transfer of the Restricted Shares unless the conditions specified in any legends are satisfied. 5.           Removal of Legend and Transfer Restrictions.  Any restrictive legends and any related stop transfer instructions may be removed at the direction of the Committee and the Company shall issue necessary replacement certificates without that portion of the legend to the Employee as of the date that the Committee determines that such legend(s) and/or instructions are no longer applicable. 6.           Change in Capitalization. (a) The number and kind of Restricted Shares shall be proportionately adjusted to reflect a merger, consolidation, reorganization, recapitalization, reincorporation, stock split, stock dividend (in excess of two percent (2%)) or other change in the capital structure of the Company in accordance with the terms of the Stock Plan. All adjustments made by the Committee under this Section shall be final, binding, and conclusive upon all parties. (b) The existence of the Stock Plan and the Restricted Stock Grant shall not affect the right or power of the Company to make or authorize any adjustment, reclassification, reorganization or other change in its capital or business structure, any merger or consolidation of the Company, any issue of debt or equity securities having preferences or priorities as to the Common Stock or the rights thereof, the dissolution or liquidation of the Company, any sale or transfer of all or part of its business or assets, or any other corporate act or proceeding. 7.           Governing Laws.  This Agreement shall be construed, administered and enforced according to the laws of the State of Delaware. 8.           Successors.  This Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of the parties. 9.           Notice.  Except as otherwise specified herein, all notices and other communications under this Agreement shall be in writing and shall be deemed to have been given if personally delivered or if sent by registered or certified United States mail, return receipt requested, postage prepaid, addressed to the proposed recipient at the last known address of the recipient.  Any party may designate any other address to which notices shall be sent by giving notice of the address to the other parties in the same manner as provided herein. 10.           Severability.  In the event that any one or more of the provisions or portion thereof contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, the same shall not invalidate or otherwise affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein. 11.           Entire Agreement.  Subject to the terms and conditions of the Stock Plan, and the applicable provisions of the Employment Agreement, this Agreement expresses the entire understanding and agreement of the parties with respect to the subject matter.  In the event of any conflict between the provisions of the Stock Plan and the terms of this Agreement, the provisions of the Stock Plan will control.  The Restricted Stock Grant has been made pursuant to the Stock Plan and an administrative record is maintained by the Committee indicating under which plan the Restricted Stock Grant is authorized. 12.           Violation.  Any disposition of the Restricted Shares or any portion thereof shall be a violation of the terms of this Agreement and shall be void and without effect. 13.           Headings.  Paragraph headings used herein are for convenience of reference only and shall not be considered in construing this Agreement. 14.           Specific Performance.  In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the party or parties who are thereby aggrieved shall have the right to specific performance and injunction in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. 15.           No Right to Continued Retention.  Neither the establishment of the Stock Plan nor the award of Restricted Shares hereunder shall be construed as giving Employee the right to a continued service relationship with the Company or an affiliate. 16.           Definitions.  Any terms which are capitalized herein but not defined herein shall have the meaning set forth in the Stock Plan.       SCHEDULE 1 TO TYSON FOODS, INC. RESTRICTED STOCK GRANT Vesting Schedule A. Provided that the Employee continues to be employed by the Company or any affiliate on the applicable Vesting Date described in this Part A, the Restricted Shares shall become Vested Restricted Shares as follows: Percentage of Shares Which are Vested Restricted Shares                                                                              Vesting Date 100%                                               ___________________ Notwithstanding the foregoing, the events described in Sections 4(b)(ii), (iii) and (iv) of the Additional Terms and Conditions to the Agreement, and the change of control provisions of the Employment Agreement, provide for accelerated vesting of all or a portion of the Restricted Shares to the extent and in the manner described by such provisions.  Except as otherwise provided in Sections 4(b)(ii), (iii) or (iv) of the Additional Terms and Conditions to the Agreement, and the change of control provisions of the Employment Agreement, all Restricted Shares shall be forfeited if the Employee experiences a Termination of Employment prior to the Vesting Date. B. The provisions of this Vesting Schedule are subject to, and limited by, all applicable provisions of the Agreement

Title: Ex-Fience cutting herself and suicidal soon to be ex-roomate them on the streets :( Question:[removed] Answer #1: That doesn't make much sense. Proof read and correct. If she is a danger to her self or others you call the police.

  Exhibit 10c   STOCK GRANT AGREEMENT made as of the 3rd day of January, 2020 between KINGSTONE COMPANIES, INC., a Delaware corporation (the “Company”), and BARRY B. GOLDSTEIN   WHEREAS, the Grantee is the Chief Executive Officer and President of the Company;   WHEREAS, the Company and the Grantee are parties to a Second Amended and Restated Employment Agreement dated as of October 14, 2019 (the “Employment Agreement”);   WHEREAS, pursuant to the Employment Agreement, the Compensation Committee of the Board of Directors of the Company has approved the grant to the Grantee of common stock of the Company (“Common Stock”) pursuant to the Company’s 2014 Equity Participation Plan (the “Plan”).   NOW, THEREFORE, in consideration of the foregoing, the Company hereby grants to the Grantee an award of shares of Common Stock upon the following terms and conditions:   1. DEFINED TERMS. All terms used, but not otherwise defined, herein shall have the meanings ascribed to them in the Plan or the Employment Agreement.   2. GRANT. Subject to the terms and conditions of the Plan and the provisions hereof, the Company hereby agrees to grant to the Grantee, pursuant to Section 16 of the Plan, an award of One Hundred Fifty-Seven Thousand Four Hundred Thirty-One (157,431) shares of Common Stock (the “Shares”), such Shares being issuable on the Vesting Dates (as hereinafter defined) set forth in, and subject to the provisions of, Section 3 hereof.   3. VESTING OF SHARES. (a) The Shares shall vest on the respective Vesting Dates set forth below, provided that the Grantee continues to serve as an employee, director or consultant of the Company as of the applicable Vesting Date (or sooner as provided for in paragraph (c) hereof):   (i) Fifty-Two Thousand Four Hundred Seventy-Seven (52,477) of the Shares on the first anniversary of the date hereof (the “First Vesting Date”);   (ii) second anniversary of the date hereof (the “Second Vesting Date”); and   (iii) Fifty-Two Thousand Four Hundred Seventy-Seven (52,477) of the Shares on December 31, 2022 (the “Third Vesting Date”); each of the First Vesting Date, the Second Vesting Date and the Third Vesting Date is referred to hereinafter as a “Vesting Date”.   (b) In the event that the Grantee does not continue to serve as an employee, director or consultant of the Company as of a particular Vesting Date as a result of the termination of the Grantee’s employment for Cause or the Grantee’s resignation (other than for Good Reason), the Grantee shall not be entitled to receive any of the Shares issuable on such Vesting Date or thereafter, and this Agreement shall terminate and be of no further force or effect.   (c) In the event that, prior to a particular Vesting Date (i) the Grantee’s employment with the Company is terminated other than for Cause, (ii) the Grantee’s employment with the Company is terminated as a result of the Grantee having become Disabled, (iii) the Grantee dies while an employee of the Company, or (iv) the Grantee resigns his employment with the Company for Good Reason, the Shares that were scheduled to vest on such Vesting Date and thereafter shall instead vest on the date of termination of employment, the date of death or the date of resignation of employment, as the case may be (the “Termination Date”).   (d) In the event that Shares vest on a Vesting Date or the Termination Date, as the case may be, the certificate representing the portion of the Shares then vested shall be issued by the Company as soon as reasonably practicable thereafter.   (e) The number of Shares issuable to the Grantee is subject to adjustment for any stock splits, reverse stock splits and other recapitalizations that take effect prior to a particular Vesting Date or the Termination Date, as the case may be.         4. INCORPORATION BY REFERENCE. The terms and conditions of the Plan are hereby incorporated by reference and made a part hereof.   5. NOTICES. Any notice or other communication given hereunder shall be deemed sufficient if in writing and hand delivered or sent by registered or certified mail, return receipt requested, addressed to the Company, 15 Joys Lane, Kingston, New York 12401, Attention: Chief Financial Officer and to the Grantee at the address indicated below, or, in each case, at such other address notice of which is given in accordance with the foregoing provisions. Notices shall be deemed to have been given on the date of hand delivery or mailing as provided for above, except notices of change of address, which shall be deemed to have been given when received.   6. BINDING EFFECT. This Stock Grant Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and assigns.   7. ENTIRE AGREEMENT. This Stock Grant Agreement, together with the Plan, contains the entire understanding of the parties hereto with respect to the subject matter hereof and may be modified only by an instrument executed by the party sought to be charged.   8. GOVERNING LAW. This Stock Grant Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, excluding choice of law rules thereof.   9. EXECUTION IN COUNTERPARTS. This Stock Grant Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which   10. SIGNATURES. Signatures hereon which are transmitted via facsimile, or other electronic image, shall be deemed original signatures.   11. INTERPRETATION; HEADINGS. The provisions of this Stock Grant Agreement shall be interpreted in a reasonable manner to give effect to the intent of the parties hereto. The headings and captions under sections and paragraphs of this Stock Grant Agreement are for convenience of reference only and do not in any way modify, interpret or construe the intent of the parties or affect any of the provisions of this Stock Grant Agreement.       IN WITNESS WHEREOF, the parties have executed this Stock Grant Agreement as of     KINGSTONE COMPANIES, INC.           By:   /s/ Victor Brodsky       Victor Brodsky       Chief Financial Officer               /s/ Barry B. Goldstein       Signature of Grantee               Barry B. Goldstein        Name of Grantee                       Address of Grantee         

Listing Report:Supplement No. 42 dated Jul 09, 2015 to Prospectus dated Jun 11, 2015 File pursuant to Rule 424(b)(3) Registration Statement Nos. 333-179941 and 333-179941-01 Prosper Funding LLC Borrower Payment Dependent Notes Prosper Marketplace, Inc.

Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference of our report, dated March 28, 2014, with respect to the balance sheets of MRI Interventions, Inc. (the “Company”) as of December 31, 2013 and 2012 and the related statements of operations, stockholders’ deficit and cash flows for the years then ended, in (i) the Company’s Registration Statement on Form S-8 (No. 333-183382) and (ii) the Company’s Registration Statement on Form S-8 (No. 333-191908). /s/ CHERRY BEKAERT LLP Tampa, Florida March 28, 2014

  LAW OFFICES OF FLUEGEL, ANDERSON, MCLAUGHLIN & BRUTLAG, CHARTERED   Michael M. Fluegel Warrenn C. Anderson David C. McLaughlin Paul Brutlag*± Robert V. Dalager Amy J. Doll* Matthew R. Fluegel Jason G. Lina Lynnae L. G. Lina *also admitted in North Dakota ± also admitted District of Columbia   _____________   215 ATLANTIC AVENUE PO BOX 527 MORRIS, MN 56267 _____________   TELEPHONE: (320) 589-4151 FAX: (320) 589-4154   Ortonville Location: 25 Second Street NW Suite 102 Ortonville, MN 56278 Telephone: (320) 839-2549 Fax: (320) 839-2540   January 13, 2011 Red Trail Energy, LLC   ATTN: Kent W. Anderson, CFO VIA EMAIL ONLY P.O. Box 11   Richardton, ND 58652       RE: Greenway Consulting, LLC & Red Trail Energy, LLC Our File No. 6267.104-3055   Dear Kent:   On behalf of Greenway Consulting, LLC, the undersigned hereby offers to extend the maturity date of the Subordinated Debt obligation between Greenway and Red Trail Energy in the amount of $1,525,000 from February 1, 2011 to April 16, 2012 under the following terms and conditions:     1. RTE hereby acknowledges its obligation to pay the sum of $1,525,000 plus interest to Greenway Consulting and/or its assigns. RTE will pay all interest due under the existing Note current as of 01/01/2011, with the understanding the interest rate on the Note shall continue at the current rate.     2. RTE acknowledges that its senior debt with First National Bank of Omaha comes due in full on April 16, 2012. RTE acknowledges that on April 16, 2012, it will pay off the Note owed to Greenway in full in the amount of $1,525,000 plus accrued interest. RTE acknowledges that any failure to pay the full balance on April 16, 2012, will result in a default interest rate being applied at the rate of 18% per annum.     3. RTE acknowledges it has retained the sum of $150,000 from the original Greenway Construction Agreement and that upon resolution of the RTE v. Fagen litigation, RTE shall release the $150,000 and pay over same to Greenway Consulting. RTE acknowledges resolution of the RTE v. Fagen lawsuit will occur for purposes of this retention release when RTE transfers funds to Fagen pursuant to the terms of the Settlement Agreement existing between RTE and Fagen.             4. RTE acknowledges a continuing monthly obligation of $14,300 to Greenway Consulting under the terms of that certain Amended Management Agreement dated 09/10/09. RTE acknowledges there are no defenses to its obligation to make said payment up to and including December 11, 2011.     5. Upon acceptance and execution of this agreement RTE shall pay over the amount it has reserved for the 2010 bonus payment pursuant to the RTE/Greenway Management Agreement with the final amount to be paid 15 days after the 2010 audit is completed.     6. RTE acknowledges if it has a net income for 2011 it will be obligated to pay a bonus payment to Greenway pursuant to the terms of that RTE/Greenway Management Agreement previously referenced. RTE acknowledges that this bonus payment of 4% of pretax net income excludes gains or losses related to RTE's purchases of discounted corn with discounted corn being defined as any corn purchased per the terms of the attached Corn Procurement Program drafted in 2009 but not implemented for either 2009 or 2010.   Upon acceptance of these terms and execution of this agreement Greenway Consulting hereby agrees to extend the terms of that certain Note and real estate Mortgage from February 1, 2011, until April 16, 2012.   THIS AGREEMENT SHALL BE EFFECTIVE AS OF 12/31/2010.   /s/ Warren C. Anderson   /s/ Kent W. Anderson Warrenn C. Anderson   Kent W. Anderson Chief Manager of Greenway Consulting, LLC   Chief Financial Officer of Red Trail     Energy, LLC     2     RE: Extension of the maturity date of the Subordinated Debt obligation between Greenway Consulting, LLC and Red Trail. Energy, LLC in the amount of $1,525,000 from February 1, 2011 to April 16, 2012 under additional terms and conditions, effective 12/31/2010, The above Extension Agreement was approved by the Board of Red Trail Energy, LLC by resolution dated February 3, 2011.   /s/ Jody Hoff   By:  Jody Hoff   Secretary of Red Trail Energy, LLC   3  

CERTIFICATE OF THE DESIGNATIONS, POWERS PREFERENCES AND RIGHTS OF THE SERIES A PREFERRED STOCK OF HISPANICA INTERNATIONAL DELIGHTS OF AMERICA, INC. A DELAWARE CORPORATION PURSUANT TO SECTION GENERAL CORPORATION LAW OF THE STATE OF DELAWARE HISPANICA INTERNATIONAL DELIGHTS OF AMERICA, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Company”), DOES HEREBY CERTIFY that, pursuant to authority conferred upon the Board of Directors of the Company (the “Board”) by the Certificate of Incorporation of, and pursuant to the provisions of SECTION 151 of the Delaware General Corporation Law, there hereby is created out of the ten million (10,000,000) shares of Preferred Stock authorized in the Certificate of Incorporation (the “Preferred Stock”), a Series of the Preferred Stock consisting of one million (1,000,000) shares, $0.001 par value per share, to be designated “Series A Preferred Stock,” and to that end the Board adopted a resolution providing for the designation, powers, preferences and rights, and the qualifications, limitations and restrictions, of the Series A Preferred Stock, which resolution is as follows: RESOLVED, that the Certificate of the Designations, Powers, Preferences and Rights of the Series A Preferred Stock (“Certificate of Designation”) be and is hereby authorized and approved, which Certificate of Designation shall be filed with the Delaware Secretary of State in the form as follows: 1.DESIGNATIONS AND AMOUNT.One Million (1,000,000) shares of the Preferred Stock of the Company, $0.001 par value per share, shall constitute a class of Preferred Stock designated as the “Series A Preferred Stock” with a face value of $0.001per share (the “Face Amount”). The Holder will be issued shares of the Series A Preferred Stock in denominations of 1,000 shares. After the initial issuance of shares of Series A Preferred Stock, no additional shares of Series A Preferred Stock may be issued by the Company except as provided herein. Page1of 4 2.VOTING.Holders of each Series A Preferred Stock shall have fifty (50) times the number of votes on all matters submitted to the shareholders that each shareholder of the Corporation’s Common Stock (rounded to the nearest whole number) is entitled to vote at each meeting of the shareholders of the Corporation (and written actions of stockholders in lieu of meetings) with respect to any and all matters presented to the shareholders of the Corporation for their action or consideration. Holders of the Series A Preferred Stock shall vote together with the holders of Common Stock as a single class. 3.DIVIDENDS.The holders of Series A Preferred Stock shall not be entitled to receive dividends paid on the Corporation’s Common Stock, such dividends paid to the holders of the Series A Preferred Stock, if any, shall be at the discretion of the Board of Directors. 4.LIQUIDATION PREFERENCE.Upon the liquidation, dissolution and winding up of the Corporation, whether voluntary or involuntary, the holders of the Series A Preferred Stock shall be entitled to receive out of the assets of the Corporation, whether from capital or from earnings available for distribution to its stockholders, an amount equal to that sum available for distribution to common stock holders. 5.VOTE TO CHANGE THE TERMS OF SERIES A PREFERRED STOCK.The affirmative vote at a meeting duly called for such purpose, or the written consent without a meeting, of the holders of not less than fifty-one percent (51%) of the shares of Series A Preferred Stock shall be required for any change to the Company’s Articles of Incorporation that would amend, alter, change or repeal any of the preferences, limitations or relative rights of the Series A Preferred Stock. 6.PROTECTION PROVISIONS.So long as any shares of Series A Preferred Stock are outstanding, the Company shall not, without first obtaining the approval (by vote or written consent, as provided by the Business Corporation Law) of the Holders of at least a majority of the then outstanding shares of Series A Preferred Stock: a.Alter or change the rights, preferences or privileges of the Series A Preferred Stock; b.Alter or change the rights, preferences or privileges of any capital stock of the Company so as to affect adversely the Series A Preferred Stock; c.Create any new class or series of capital stock having a preference over the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the Company (as previously defined, “Senior Securities”); d.Create any new class or series of capital stock ranking pari passu with the Series A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding up of the company (as previously defined, “Pari Passu Securities”); e.Increase the authorized number of shares of Series A Preferred Stock; Page2of 4 f.Issue any additional shares of Senior Securities; or g.Redeem, or declare or pay any cash dividend or distribution on, any Junior Securities. If Holders of at least a majority of the then outstanding shares of Series A Preferred Stock agree to allow the Company to alter or change the rights, preferences or privileges of the shares of Series A Preferred Stock pursuant to subsection (i) above, then the Company shall deliver notice of such approved change to the Holders of the Series A Stock that did not agree to such alteration or change (the “Dissenting Holders”) and the dissenting Holders shall have the right, for a period of thirty (30) days, to convert pursuant to the terms of this Certificate of Designation as they existed prior to such alteration or change or to continue to hold their shares of Series A Preferred Stock. 7.MERGER, CONSOLIDATION, ETC.If at any time or from time to time there shall be (i) a merger, or consolidation of the Company with or into another corporation, (ii) the sale of all or substantially all of the Company’s capital stock or assets to any other person, (iii) any other form of business combination or reorganization in which the company shall not be the continuing or surviving entity of such business combination or reorganization, or (iv) any transaction or Series of transactions by the company in which in excess of 50 percent of the Company’s voting power is transferred (each, a “Reorganization”), then as a part of such Reorganization, provision shall be made so that the holders of the Series C Stock shall thereafter be entitled to receive upon conversion of the Series A Stock, the same kind and amount of stock or other securities or property (including cash) of the Company, or of the successor corporation resulting from such Reorganization, to which such holder would have been entitled if such shares of Series A Preferred Stock had been converted immediately prior to the effective time of Such Reorganization.In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 7 to the end that the provisions of this Section 7 (including adjustment of the Conversion Value then in effect and the number of shares of Common Stock or other securities issuable upon conversion of such shares of Series A Preferred Stock) shall be applicable after that event in as nearly equivalent a manner as may be practicable 8.NO IMPAIRMENT.The Company will not, by amendment of its Certificate of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Company, but will at all times in good faith assist in the carrying out of all the provisions of this Certificate of Designation and in taking of all such action as may be necessary or appropriate in order to protect the conversion rights of the holders of the Series C Stock against impairment. 9.LOST OR STOLEN CERTIFICATES.Upon receipt by the Company of (i) evidence of the loss, theft, destruction or mutilation of any Preferred Stock Certificate(s) and (ii) (y) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to the Company, or (z) in the case of mutilation, upon surrender and cancellation of the Preferred Stock Certificate Page3of 4 the Company shall execute and deliver new preferred Stock Certificate(s) of like tenor and date. 10.RECORD OWNER.The Company may deem the person in whose name shares of Series A Preferred Stock shall be registered upon the registry books of the Company to be, and may treat him as, the absolute owner of the Series A Preferred Stock for all purposes, and the Company shall not be affected by any notice to the contrary. 11.REGISTER.The Company shall maintain a transfer agent, which may be the transfer agent for the Common Stock or the Company itself, for the registration of the Series A Preferred Stock. IN WITNESS WHEREOF, Jerry Gruenbaum, Secretary and Director of Hispanica International Delights of America, Inc., under penalties of perjury, does hereby declare and certify that this is the act and deed of Hispanica International Delights of America, Inc. and the facts stated herein are true and accordingly has signed this Certificate of Designation on July 22, 2013. /s/ Jerry Gruenbaum Jerry Gruenbaum., Secretary, Director Page4of 4

  Amendment to September 18, 2003 Restricted Stock Award Agreement   The Restricted Stock Award Agreement between Everest Re Group, Ltd. and Joseph V. Taranto dated September 18, 2003 is hereby amended as set forth below:   Effective August 31, 2005, Paragraph 3(a) is amended in its entirety to read as follows:     “(a) The Participant shall become vested in the Covered Shares on March 31, 2008, provided his employment has not been terminated for cause as that term is defined in the Participant’s Employment Agreement with the Corporation or its subsidiaries, and further provided that such accelerated vesting shall be effective only if the operation thereof would not cause the Covered Shares to be treated, in whole or in part, as “deferred compensation” for purposes of section 409A of the Internal Revenue Code. The Participant shall also become vested in the Covered Shares as of the Date of Termination prior to the date the Covered Shares would otherwise become vested, if the Date of Termination occurs by reason of the Participant’s death or disability.”       Everest Re Group, Ltd.   By: /s/ Joseph A. Gervasi Joseph A. Gervasi Senior Vice President   /s/ Joseph V. Taranto Joseph V. Taranto     Dated: August 31, 2005          

Converted by SEC Publisher, created by BCL Technologies Inc., for SEC Filing SUPPLEMENT Dated November 12, 2007 To The Prospectus Dated April 30, 2007 For ING GoldenSelect Access One Issued By ING USA Annuity and Life Insurance Company Through Its Separate Account B This supplement updates the current prospectus for your variable annuity contract. Please read it carefully and keep it with your copy of the prospectus for future reference. If you have any questions, please call our Customer Contact Center at 1-800-366-0066. IMPORTANT INFORMATION REGARDING UPCOMING FUND LIQUIDATION On July 12, 2007, the Board of Trustees of ING Investors Trust approved a proposal to liquidate the: · ING MarketPro Portfolio. The proposed liquidation is subject to shareholder approval. If shareholder approval is obtained, it is expected that the liquidation will take place on or about November 10, 2007 (the “Closing Date”). Voluntary Transfers Before the Closing Date. Anytime prior to the Closing Date you may transfer amounts that you have allocated to the subaccounts that invest in the ING MarketPro Portfolio to any of the other available investment options. There will be no charge for any such transfer, and any such transfer will not count as a transfer when imposing any applicable restriction or limit on transfers. You may give us alternative allocation instructions at any time by contacting the ING Customer Service Center at 909 Locust Street, Des Moines, IA 50309-2899, 1-800-366-0066. See also the “Transfers Among Your Investments” section of your prospectus for further information about making fund allocation changes. Automatic Reallocation Upon Liquidation. After the Closing Date and our receipt of the proceeds from the liquidation of the ING MarketPro Portfolio, amounts that were allocated to the subaccounts that invested in this portfolio will be automatically reallocated to the subaccount that invests in the ING Liquid Assets Portfolio. There will be no charge for this automatic reallocation, and this automatic reallocation will not count as a transfer when imposing any applicable restriction or limit on transfers. Furthermore, you will not incur any tax liability because of this automatic reallocation, and your contract value immediately before the reallocation will equal your contract value immediately after the reallocation. Future Allocations. After the Closing Date, the subaccounts that invested in the ING MarketPro Portfolio (Class S) will be no longer available through your contract. Any future allocations directed to a subaccount that invested in one of this portfolio will be automatically allocated to the subaccount that invests in the ING Liquid Assets Portfolio. Information about the ING Liquid Assets Portfolio. Summary information about the ING Liquid Assets Portfolio can be found in Appendix B of your prospectus. More detailed information can be found in the current prospectus for that fund. You may obtain these documents by contacting the ING Customer Service Center at 909 Locust Street, Des Moines, IA 50309-2899, 1-800-366-0066. There will be no further disclosure regarding the ING MarketPro Portfolio in future prospectuses of the contract. Access One November 2007

Title: My grandfather just passed away and his estranged wife is using her right to cremate him when he wanted a veteran military service Question:My grandpa just passed away. He was a veteran of two wars and was passionate about the military. He got remarried after my grandma and him divorced. His second marriage was an odd one and he ended up moving back to ohio to be with us and his wife stayed in West Virginia and had been living with a boyfriend for two years now. When he passed away she decided to be spiteful towards my mom and grandma and tell the funeral home to cremate him and have his remains sent to her. Is there anything my mom can do? Answer #1: He can still have a military funeral service. Just contact the local military branch and ask for their honor guard and you'll have to fax some paperwork, like a dd-214. The military honor guard renders military honors whenever and wherever. Maybe they can just do it at the funeral home. Plus it's free. Source I was in Air Force honor guard for 2 years. Answer #2: My grandfather passed while vacationing with family out of state. We all flew in to have a military service at the out-of-state location. It was a beautiful ceremony. Photo slide show, big wreaths, portrait, and the military honor guard. Of note, his body was still back in the morgue being prepped for travel back to his home and it was an empty urn on the dais. Grandma had a smaller service back home. Point being you don't have to have the physical body present in order to have a service, military or no.