Common use of Conditions Precedent to Closing Clause in Contracts

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and

Conditions Precedent to Closing. Subject to Section 3.02(a) Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, the obligation of the Lenders hereunder Purchaser to consummate the Closing shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction, at or before the Closing Date the following, each in form and substance reasonably satisfactory prior to the Facility Agent: (a) Closing, of each of the Facility Documents duly executed and delivered following conditions (any of which may be waived in whole or in part by the parties thereto, which shall each be in full force and effect;Purchaser): (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent DocumentsThere shall not be in force any order or decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the consummation of the Closing. (ii) as to its resolutions or other action Each of its board the representations and warranties of directors or members approving the Company contained in this Agreement and the other Facility Transaction Documents to which it the Company is a party shall be true and correct in all material respects as of the transactions contemplated therebyClosing (except that any such representation or warranty which speaks, by its terms, as of a specific date or time other than the Closing, shall be true and correct as of such date), and each of the covenants and agreements of the Company to be performed or complied with by the Company as of or prior to the Closing shall have been performed or complied with by the Company in all material respects. (iii) that its The Company shall have delivered the certificates and the other documents (if any) required to be delivered by it pursuant to Section 2(b)(ii) in accordance with the provisions thereof. (b) Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, the obligation of the Company to consummate the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived in whole or in part by the Company): (i) There shall not be in force any order or decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the consummation of the Closing. (ii) Each of the representations and warranties set forth of the Purchaser contained in this Agreement and the Facility other Transaction Documents to which it the Purchaser is a party are shall be true and correct in all material respects as of the Closing Date (except to that the extent such representations representation and warranties expressly relate to any earlier date, warranty of the Purchaser set forth in which case such representations and warranties Section 3(h) hereof shall be true and correct in all material respects as of such earlier date), (iv) no Default and each of the covenants and agreements of the Purchaser to be performed or Event complied with by the Purchaser as of Default has occurred and is continuing, and (v) as or prior to the incumbency and specimen signature of each of its Responsible Officers authorized to execute Closing shall have been performed or complied with by the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct Purchaser in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;respects. (iii) The Purchaser shall have paid the Borrower has not assignedPurchase Price to the Company, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted by wire transfer of immediately available funds pursuant to this Agreement and payment instructions furnished by the Account Control Agreement;Company to the Purchaser. (iv) The Company shall have received the Borrower has full right documents required to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant be received by the Borrower, Delivery of Company pursuant to Section 2(b)(ii) in accordance with the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andprovisions thereof.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of such Purchaser contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the extent Closing Date. (c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated. SECTION 7.2. Conditions to Each Purchaser's Obligations. The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions: (a) The representations and warranties expressly relate to any earlier date, of the Company contained in which this Agreement (i) shall have been true and correct when made and (ii) shall be (A) in the case such of representations and warranties shall be that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects as respects, in the case of such earlier dateclauses (A) and (B), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties b) The Company shall be true and correct have performed in all material respects as all of such earlier date)its obligations, (iv) no Default agreements and covenants contained in this Agreement to be performed and complied with at or Event of Default has occurred and is continuing, and (v) as prior to the incumbency and specimen signature Closing Date. (c) The Company shall have entered into the Registration Rights Agreement. (d) The Company shall have filed the Certificate of each Designation with the Secretary of its Responsible Officers authorized State of the State of Delaware. (e) Any applicable waiting period under the HSR Act with respect to execute the Facility Documents to which it is a party;purchase by such Purchaser shall have expired or been terminated. (f) proper financing statementsWith respect to the Closing of the purchase by Microsoft, the earlier of (x) December 15, 1999, or (y) the expiration or other termination of the waiting period under the UCC in all jurisdictions that HSR Act with respect to the Facility Agent deems necessary filing under the HSR Act by the HMTF Purchaser, shall have occurred prior to or desirable in order simultaneously with such Closing; and with respect to perfect the interests in Closing of the Collateral contemplated purchase by this Agreement;DB, the purchase by the HMTF Purchaser shall have occurred prior to or simultaneously with such Closing. (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement The Company shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) such Purchaser a certificate of executed by it or on its behalf by a Responsible Officer of the Borrowerduly authorized representative, dated as of the Closing Date, to the effect thatthat each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied. (h) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the case effect of each item making the Transactions illegal or shall otherwise restrain or prohibit the consummation of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:Transactions. (i) Such Purchaser shall have received an opinion of counsel to the Borrower is the owner of such Collateral free and clear of any liensCompany, claims or encumbrances of any nature whatsoever except for (A) those which are being released on dated the Closing Date, and addressed to such Purchaser, in form and substance reasonably acceptable to the Purchaser. (Bj) those granted pursuant Such Purchaser shall have received certificates representing the Shares purchased by such Purchaser concurrently with the Company's receipt of the Purchase Price for such Shares. (k) with respect to the HMTF Purchaser and the Olympus Funds only, the Company shall have delivered to the HMTF Purchaser and the Olympus Funds a Management Rights Agreement executed by the Company and addressed to the HMTF Funds and the Olympus Growth Fund III, L.P., respectively. (l) there shall not have occurred (i) any event, circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and the Subsidiaries taken as a whole or (y) on the ability of the Company and the Subsidiaries to perform on a timely basis any material obligation under this Agreement and or to consummate the Account Control Agreement and (C) Permitted Liens; Issuance contemplated hereby; or (ii) any material disruption of or material adverse change in financial, banking or capital market conditions that would reasonably be expected to materially impair the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant Company's ability to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andobtain financing on reasonable terms.

Conditions Precedent to Closing. Subject Each Constituent Corporation’s obligation to Section 3.02, consummate the obligation of Merger and close the Lenders hereunder transactions contemplated by this Agreement shall be subject to the satisfaction of each of the following conditions precedent that the Facility Agent shall have received on or before prior to the Closing Date by the followingother Constituent Corporation, each unless any such condition is specifically waived in form and substance reasonably satisfactory writing by the other Constituent Corporation in whole or in part at or prior to the Facility AgentClosing: (a) each of the Facility Documents Each Constituent Corporation shall have duly executed and delivered all documents, instruments, and certificates required to be executed and delivered by it pursuant to the parties thereto, which shall each be in full force and effectprovisions of this Agreement; (b) true Each Constituent Corporation shall have performed or complied with each and complete copies all of the Constituent Documents of the Borrowerobligations, the Fundcovenants, agreements, and conditions required to be performed or complied with by it on or prior to the Collateral Manager as in Closing Date, except where the failure to do so has not had or would not reasonably be expected to constitute a material adverse effect on the Closing DateConstituent Corporations’ ability to consummate the Merger; (c) true Each Constituent Corporation shall have received all necessary approvals regarding its execution of this Agreement and complete copies certified by a Responsible Officer the consummation of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreementhereunder, including without limitation all approvals required from its Board of Directors and members; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth There shall have been no Material Adverse Change in the Facility Documents to which it is a party are true and correct in all material respects as business, results of the Closing Date operations, prospects, condition (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (ivfinancial or otherwise) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature assets of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Constituent Corporation. (e) a certificate of a Responsible Officer of Each Constituent Corporation shall have made all filings or recordings with the Collateral Manager certifying (i) Commissioner as to its Constituent Documents, (ii) as to its resolutions approving required under the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Wisconsin Insurance Law. (f) proper financing statementsThe Constituent Corporations shall have received final Commissioner approval of the Merger, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if anyand all other documents and transactions contemplated hereby, necessary to release all security interests and other rights of any Person in upon the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the BorrowerEffective Time, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) Commissioner will deliver a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, authority to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andSurviving Corporation.

Conditions Precedent to Closing. Subject to Section 3.02The Equity Conversion will be conditioned upon satisfaction of terms and conditions in the Conversion Agreement, the obligation of the Lenders hereunder shall be as provided by, consistent with, and subject to the conditions precedent that Restructuring Support Agreement, including, without limitation, the Facility Agent following: • The Restructuring Support Agreement shall be in full force and effect as of the closing of the Equity Conversion and shall not have been amended or modified without the prior consent of the Required EFIH Unsecured Consenting Creditors in violation of the terms of the Restructuring Support Agreement; • The Bankruptcy Court shall have received on or before entered the Closing Date Disclosure Statement Order, and such order shall be in full force and effect and not subject to a stay; • The Bankruptcy Court shall have entered the followingConfirmation Order, each and such order shall be in full force and effect and not subject to a stay; • The Registration Rights Agreement shall be in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed Required EFIH Unsecured Consenting Creditors; • Any and delivered by the parties thereto, which shall each be in full force all governmental and effect; (b) true third party consents and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required approvals necessary in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer Equity Conversion and the Plan Restructuring Documents shall have been obtained and shall remain in effect; • The Private Letter Ruling shall have been obtained from the IRS; • The Plan shall have become, or simultaneously with the issuance of the Borrower certifying (i) as New Reorganized EFH Stock will become, effective; • The covenants to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement be performed by EFH and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth EFIH in the Facility Documents to which it is a party are true Conversion Agreement shall have been performed and correct complied with in all material respects as on the closing date of the Closing Date Equity Conversion; and • There shall not have been a continuing default (except to or any event which with the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall giving of notice or lapse of time or both would be true and correct in all material respects as of such earlier date), (iva default) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andSecond Lien DIP Facility.

Conditions Precedent to Closing. Subject 5.1 Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company hereunder shall required to be subject to the conditions precedent that the Facility Agent shall have received performed on or before the Closing Date the followingshall be subject, each in form and substance reasonably satisfactory at its election, to the Facility Agentsatisfaction or waiver, at or prior to the Closing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of the Purchaser contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct in all material respects as of the Closing Date (except to the extent such representations when made and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except b) The Purchaser shall have performed all obligations and agreements, and complied with all covenants, contained in this Agreement, to be performed and complied with by the Purchaser at or prior to the extent such Closing. (c) All governmental and regulatory approvals and clearances and all third-party Consents necessary for the consummation by the Purchaser of the transactions contemplated by the Transaction Documents shall have been obtained and shall be in full force and effect. (d) The Company shall have received payment of the Purchase Price as well as payment of all costs incurred by the Company in connection with the sale of the Subject Interests.15 5.2 Conditions to Purchaser's Obligations. The obligations of the Purchaser hereunder required to be performed at the Closing shall be subject, at its election, to the satisfaction or waiver, at or prior to the Closing, of the following conditions: (a) The representations and warranties expressly relate to any earlier date, of the Company contained in which case such representations this Agreement shall have been true and warranties correct when made and shall be true and correct in all material respects on and as of such earlier date), the Closing Date with the same force and effect as though made on and as of the Closing Date. (ivb) no Default or Event of Default has occurred The Company shall have performed all obligations and is continuingagreements, and (v) as complied with all covenants, contained in this Agreement, to be performed and complied with by it at or prior to the incumbency and specimen signature Closing Date. (c) There shall not exist any Lien on any assets owned by any AH Entity other than those contemplated under the Mortgage Loan Documents, the Investor Loan Documents, the Subordinated Loan Documents or any documents executed by Purchaser. (d) To the extent not already in the possession of the Purchaser or one of its Affiliates, the Company shall have delivered to the Purchaser a copy of each of its Responsible Officers authorized to execute AH Entity's Organizational Documents, as amended through the Facility Documents to which it is a party;Closing Date. (fe) proper financing statements, under All governmental and regulatory approvals and clearances and all third-party Consents necessary for the UCC in all jurisdictions that consummation of the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral transactions contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement Transaction Documents shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary obtained and shall be in full force and effect;. (jf) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses The Purchaser shall have received delivery of the Collateral Agent have been paid in full;Stock Certificate and an executed Stock Power. (kg) each The Purchaser shall have received such other certificates, instruments and documents in furtherance of the Eligible Hedge Agreementstransactions contemplated by this Agreement as it may reasonably request. (h) Each officer and director, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender AH Entity shall have reasonably requested; andresigned.

Conditions Precedent to Closing. Subject to Section 3.02, The effectiveness of this Agreement (which shall occur on the obligation of the Lenders hereunder shall be Closing Date) is subject to the satisfaction of the following conditions precedent that as of the Facility Agent Closing Date on or before [—] (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate): (a) each Party shall have received, in a form satisfactory to it, opinions from counsel to the other Party covering due authorization, execution and delivery of the Capital Protection Documents by the other Party, in each case in form and substance reasonably satisfactory to such Party; (b) each Party shall have received, in a form satisfactory to it, copies of all Capital Protection Documents duly executed and delivered by the other Party and, where applicable, the Guarantor; (c) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the Custody Agreement duly executed by the Trust and the Custodian; (d) the Capital Protection Provider shall have received an officer’s certificate of the Fund, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) the incumbency and signature of the officers of the Fund executing any Capital Protection Document, or before having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents and each Prospectus of the Fund and the Organizational Documents of the Trust, certified as of the Closing Date as complete copies thereof by the followingSecretary or an Assistant Secretary of the Fund or the Trust, as applicable, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Trust and the Fund (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Fund; (e) the Capital Protection Provider shall have received an officer’s certificate of the Adviser, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Adviser and the Secretary or any Assistant Secretary on behalf of the Adviser and which certificate shall include (i) the incumbency and signature of the officers of the Adviser executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents of the Adviser, certified as of the Closing Date as complete copies thereof by the Secretary or an Assistant Secretary of the Adviser, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of the Adviser (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Adviser; (f) the Fund shall have received a certificate dated as of the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by the Secretary or an Assistant Secretary of the Capital Protection Provider on behalf of the Capital Protection Provider, and which certificate shall include the incumbency and signature of the employees of the Capital Protection Provider authorized to execute on behalf of the Capital Protection Provider any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement; (g) the Fund shall have received, in a form satisfactory to it, a certificate, dated as of the Closing Date, substantially in the form of Exhibit D, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by a permanent representative of the Guarantor on behalf of the Guarantor, and which certificate shall include the incumbency and signature of the employees of the Guarantor authorized to execute on behalf of the Guarantor any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement; (h) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the resolutions, in form and substance reasonably satisfactory to the Facility Agent: (a) each Capital Protection Provider, of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; Board of Directors (bor analogous body) true and complete copies of the Constituent Documents Fund authorizing the execution, delivery and performance of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Capital Protection Documents to which it is a party party, certified on behalf of the Fund by the Secretary or an Assistant Secretary of the Fund, as of the Closing Date, which certification shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), shall be in form and substance reasonably satisfactory to the transactions contemplated therebyCapital Protection Provider and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded; (iiii) the Capital Protection Provider shall have received, in a form satisfactory to it, a certification that its shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), stating on behalf of the Fund that as of the Closing Date: (i) The representations and warranties set forth contained in the Facility Documents to which it is a party Section 4.01 are true and correct in all material respects on and as of the Closing Date, as though made on and as of the Closing Date; (ii) No Fund Event or Knock-Out Event exists as of the Closing Date; (iii) No licenses, authorizations, consents or approvals as referred to in Section 4.01(n) are required as of the Closing Date or, in the case that such documents are required, that they are required and attaching copies thereof; and (except iv) The Aggregate Protected Amount as of the Closing Date does not exceed the Maximum Settlement Amount; (j) the Fund shall have arranged with the Custodian for the Capital Protection Provider and the Agent to directly receive the extent such applicable reports and information contained in Schedule II; (k) the representations and warranties expressly relate to any earlier datemade by the Fund and Capital Protection Provider, respectively, contained in which case such representations and warranties ARTICLE 4 shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effectDate; (l) each Party shall have received, in a certificate of a Responsible Officer form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters reasonably requested by such Party evidencing or confirming the accuracy of the Borrower, dated as representations and warranties made by the other parties hereunder or the authority of such other parties to enter into this Agreement or the Closing Date, other Capital Protection Document to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:which they are party; and (m) (i) the Borrower is registration statement of the owner of such Collateral free Fund shall have been filed with the Commission and clear of any liensbecome effective, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice investment policies and objectives of any adverse claim, except the Fund as described in clause (i) above; the Prospectus contained in such registration statement and the description of the Capital Protection Provider and the Capital Protection Agreement in such Prospectus shall, in each case, be reasonably satisfactory to the Agent, and (iii) the Borrower has not assigned, pledged or otherwise encumbered Agent shall have determined in its interest in reasonable discretion that any modifications to such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant Prospectus from the draft most recently filed with the Commission prior to the date of this Agreement do not materially change the rights of the Capital Protection Provider under, or the terms of, this Agreement. Upon receipt the satisfaction of all documentary conditions precedent and its reasonable satisfaction that all non-documentary conditions precedent have been satisfied on or before [—], each of the Fund and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest Capital Protection Provider will confirm in and assign and pledge such Collateral writing to the Collateral Agentother that the conditions precedent have been satisfied, and upon such written confirmation thereof from the Fund and the Capital Protection Provider on or before [—], the Closing Date shall occur; and (v) upon grant by provided, that such confirmation shall not constitute a waiver of any non-documentary condition that was not satisfied, and the Borrower, Delivery non-defaulting Party shall be entitled to exercise any rights it may have hereunder or under applicable Law arising out of the Collateral and execution failure of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andcondition.

Conditions Precedent to Closing. Subject 7.1 Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders hereunder Company with respect to the Investors required to be performed on the Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver in writing, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of each Investor contained in the Facility Documents to this Agreement which it is a party are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all material respects as of and the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in of such Investor which case such representations and warranties are not so qualified shall be true and correct in all material respects respects, in each case on and as of such earlier date)the date hereof and on and as of the Closing Date, as if made on and as of the Closing Date. (ivb) no Default or Event of Default has occurred Each Investor shall have performed in all material respects all obligations and is continuingagreements, and (v) as complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Investor at or prior to the incumbency Closing Date. (c) No provision of any Applicable Law, injunction, order or decree of any Governmental Authority shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (d) The Company shall have received from each Investor certificates representing the aggregate number of shares of Original Preferred Stock and specimen signature the aggregate number of Original Warrants set forth opposite such Investor's name on Schedule A hereto concurrently with each Investor's receipt from the Company of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Notes in an aggregate principal amount and the pro rata portion of the Cash Proceeds set forth opposite such Investor's name on Schedule A hereto. (e) a certificate Each Investor shall have executed and delivered the Term Loan Agreement. (f) Each Investor shall have executed and delivered the Amended Registration Rights Agreement. (g) Each Investor shall have executed and delivered the Termination of a Responsible Officer Stockholders' Agreement. (h) The Company shall have received the written opinion of the Collateral Manager certifying Evercore Partners, Inc., as contemplated by Section 2.2(c). (i) The Company shall have received letters of resignation of each of the two directors designated by the Sandler Investors as holders of Original Preferred Stock and each of the two directors designated by the MidOcean Investor as a holder of Original Preferred Stock. 7.2 Conditions to its Constituent DocumentsEach Investor's Obligations. The obligations of each Investor required to be performed on the Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Closing, of the following conditions: (iia) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its The representations and warranties set forth of the Company contained in the Collateral Management this Agreement which are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all material respects as of and the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in of the Company which case such representations and warranties are not so qualified shall be true and correct in all material respects respects, in each case on and as of such earlier date)the date hereof and on and as of the Closing Date, as if made on and as of the Closing Date. (ivb) no Default or Event The Company shall have performed in all material respects all of Default has occurred its obligations and is continuingagreements, and (v) as complied with covenants contained in this Agreement to be performed and complied with at or prior to the incumbency and specimen signature Closing Date. (c) No provision of any Applicable Law, injunction, order or decree of any Governmental Authority shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (d) The Company shall have delivered to such Investor a certificate executed by it or on its behalf by a duly authorized representative, dated the Closing Date, to the effect that each of its Responsible Officers authorized the conditions specified in paragraph (a) through (c) and (l) of this Section 7.2 has been satisfied. (e) The Company shall have delivered to execute such Investor the Facility Documents to which it is a party;certificate executed by the Secretary of the Company, dated the Closing Date, as contemplated by Section 2.2(b)(vii). (f) proper financing statementsThe Company and each of the other parties thereto (other than the Investors) shall have executed and delivered the Term Loan Agreement, and such Investor shall have received evidence satisfactory to it in its sole discretion that the closing conditions under the UCC in all jurisdictions that Term Loan Agreement have been satisfied and the Facility Agent deems necessary or desirable in order to perfect transactions contemplated thereby shall be consummated simultaneously with the interests in the Collateral contemplated by this Agreement;Exchange. (g) copies The Company and each of proper financing statements, if any, necessary to release all security interests the parties thereto (other than the Investors) shall have executed and other rights of any Person in delivered the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor);Amended Registration Rights Agreement. (h) legal opinions (addressed to The Company and the each of the Secured Partiesparties thereto (other than the Investors) shall have executed and delivered the Termination of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;Stockholders Agreement. (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement Such Investor shall have been executed and delivered by received the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the BorrowerOpinion, dated as of the Closing Date, and addressed to such Investor in form and substance reasonably acceptable to the effect that, in MidOcean Investor and the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:Sandler Investors. (ij) Such Investor shall have received a long-form good standing certificate of the Borrower is the owner Company and each Subsidiary, dated as of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on a date as close as practicable to the Closing Date, issued by the Secretary of State of the State of Delaware, as contemplated by Section 2.2(b)(viii). (Bk) those granted pursuant Such Investor shall have received the Notes in an aggregate principal amount and the pro rata portion of the Cash Proceeds set forth opposite such Investor's name on Schedule A hereto concurrently with the Company's receipt of the certificates representing the aggregate number of shares of Original Preferred Stock and the aggregate number of Original Warrants set forth opposite such Investor's name on Schedule A hereto. (l) There shall not have occurred any event, circumstance, condition, fact, effect or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the condition (financial or otherwise), business, properties, assets, liabilities, operations or results of operations of the Company and the Subsidiaries, taken as a whole or (y) on the ability of the Company and the Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the Exchange contemplated hereby. (m) The Private Placement shall have been successfully consummated by the Company on terms and conditions (including, without limitation, the issuance price of the Common Stock) satisfactory to the MidOcean Investor and the Sandler Investors. (n) The Company shall have received the written opinion of Evercore Partners, Inc., as contemplated by Section 2.2(c). (o) All other Investors shall have elected to consummate simultaneously the transactions contemplated by this Agreement and the Account Control Agreement and (C) Permitted Liens;other Transaction Documents. (iip) The Company's outstanding Senior Subordinated Debentures due 2005 shall have been repaid in full, and satisfactory evidence thereof shall have been delivered to the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;Investors. (iiiq) The Company shall have delivered to such Investor evidence of the Borrower has not assigned, pledged or otherwise encumbered its interest in payment of all costs and expenses of such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted Investor required to be reimbursed by the Company pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andSection 8.10.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of such Purchaser contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the extent Closing Date. (c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated. (d) The Company shall have obtained all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and of all other Persons required in connection with the execution, delivery and performance of the Equity Documents or the consummation of the Issuance. (e) Such Purchaser shall have entered into the Registration Rights Agreement. SECTION 7.2. Conditions to Each Purchaser's Obligations. The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions: (a) The representations and warranties expressly relate to any earlier date, of the Company contained in which this Agreement (i) shall have been true and correct when made and (ii) shall be (A) in the case such of representations and warranties shall be that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects as respects, in the case of such earlier dateclauses (A) and (B), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties b) The Company shall be true and correct have performed in all material respects as all of such earlier date)its obligations, (iv) no Default agreements and covenants contained in this Agreement to be performed and complied with at or Event of Default has occurred and is continuing, and (v) as prior to the incumbency and specimen signature Closing Date. (c) The Company shall have entered into the Registration Rights Agreement. (d) The Company shall have filed the Certificate of each Designation with the Secretary of its Responsible Officers authorized State of the State of Delaware. (e) Any applicable waiting period under the HSR Act with respect to execute the Facility Documents to which it is a party;purchase by such Purchaser shall have expired or been terminated. (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement The Company shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) such Purchaser a certificate of executed by it or on its behalf by a Responsible Officer of the Borrowerduly authorized representative, dated as of the Closing Date, to the effect thatthat each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied. (g) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the case effect of each item making the Transactions illegal or shall otherwise restrain or prohibit the consummation of Collateral pledged the Transactions. (h) Such Purchaser shall have received an opinion of counsel to the Collateral AgentCompany, on the Closing Date and immediately prior to the delivery thereof on dated the Closing Date:, and addressed to such Purchaser, in form and substance reasonably acceptable to the Purchaser. (i) Such Purchaser shall have received certificates representing the Borrower is Securities purchased by such Purchaser concurrently with the owner Company's receipt of the Purchase Price for such Collateral free Securities. (j) The Purchaser shall have executed and clear of caused its rights agent to execute the Rights Agreement Amendment. (k) The Company shall have delivered to the HMTF Purchasers a Management Rights Agreement executed by the Company and addressed to the HMTF Funds. (l) There shall not have occurred (i) any liensevent, claims circumstance, condition, fact, effect or encumbrances of any nature whatsoever except for other matter which has had or could reasonably be expected to have a material adverse effect (Ax) those which are being released on the Closing Datebusiness, assets, financial condition, prospects, or results of operations of the Company and the Subsidiaries taken as a whole or (By) those granted pursuant on the ability of the Company and the Subsidiaries to perform on a timely basis any material obligation under this Agreement and or to consummate the Account Control Agreement and (C) Permitted Liens; Issuance contemplated hereby; or (ii) any material disruption of or material adverse change in financial, banking or capital market conditions that would reasonably be expected to materially impair the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant Company's ability to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andobtain financing on reasonable terms.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate A. In addition to any earlier date, conditions provided in which case such representations and warranties shall be true and correct in all material respects as other provisions of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in Purchaser’s obligation to purchase the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and Project is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, conditioned on the Closing Date and immediately prior to the delivery thereof on the Closing Datefollowing: (i) The due performance by Seller, in every material respect, of each and every covenant, undertaking and agreement to be performed by it hereunder and the Borrower truth, in every material respect, of each representation and warranty made in this Agreement by Seller at the time as of which the same is made and as of the owner Closing as if made on and as of such Collateral free and clear the Closing. (ii) That at no time prior to the Closing shall any of the following have been done by or against or with respect to Seller and/or Tenants: (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) the appointment of a trustee or receiver of any liens, claims property interest; or encumbrances (c) an assignment for the benefit of any nature whatsoever except for creditors. (Aiii) those The existence of no exceptions to title or title defects which (x) are being released not Permitted Exceptions and (y) would have a material adverse effect on Purchaser’s ownership or Purchaser’s ability to finance the Closing Date, Project. (Biv) those granted pursuant to That between the date of the execution of this Agreement and the Account Control Agreement Closing, Seller shall: (a) not, without first obtaining the written consent of Purchaser, enter into any contracts, agreements or leases pertaining to the Project; (b) not amend, waive any rights under, modify or terminate the Leases; (c) not convey any Intangible Property or remove from the Project any of the Personal Property; and (Cd) Permitted Liens;maintain and not cancel or permit cancellation of any hazard or liability insurance carried with respect to the Project or its operation. (v) The physical condition of the Project shall be the same on the Closing Date as on the Effective Date, reasonable wear and tear excepted. (vi) The execution and delivery of the A&R Easement Agreement in all material respects in the form approved by Seller, Seller’s mortgagee and Purchaser in accordance with Section 7.D hereof. (vii) The Title Company is prepared to issue the Title Policy. (viii) There have been no material adverse changes in the financial condition of CF or Lundbeck between the Effective Date and the Closing. (ix) Seller request from each Tenant of the Building an estoppel certificate in all material respects in the form attached hereto as Exhibit L (each, a “Tenant Estoppel Certificate”) dated no more than thirty (30) days prior to the Closing Date and, at a minimum, shall deliver to Purchaser such estoppel certificates from CF and Lundbeck disclosing no matters having a material adverse impact on the Project. (x) Seller shall deliver to Purchaser an estoppel certificate from the Parkway North Owners’ Association, an Illinois not-for-profit corporation, in all material respects in the form attached hereto as Exhibit U (the “Association Estoppel Certificate”), disclosing no matters having a material adverse impact on the Project. B. In addition to any conditions provided in other provisions of this Agreement, Seller’s obligation to sell the Project to Purchaser is and shall be conditioned on the following: (i) The due performance by Purchaser, in every material respect, of each and every covenant, undertaking and agreement to be performed by it hereunder and the truth, in every material respect, of each representation and warranty made in this Agreement by Purchaser at the time as of which the same is made and as of the Closing as if made on and as of the Closing. (ii) That at no time prior to the Borrower has acquired its ownership in such Collateral in good faith without notice Closing shall any of the following have been done by or against or with respect to Purchaser: (a) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (b) the appointment of a trustee or receiver of any adverse claim, except as described in clause property interest; or (ic) above;an assignment for the benefit of creditors. (iii) The execution and delivery of the Borrower has not assignedA&R Easement Agreement, pledged the Relocation Agreement, the Master Lease and the Sublease in all material respects in the form approved by Seller, Seller’s mortgagee and Purchaser in accordance with Section 7.D hereof. C. Either party may at any time or otherwise encumbered times, at its interest in such Collateral (orelection, if waive any of the conditions to its obligations hereunder, but any such interest has been assignedwaiver shall be effective only if contained in a writing signed by such party. No such waiver shall reduce the rights or remedies of a party by reason of any breach by the other party (but if a condition is waived, pledged the party waiving the same may not rescind this Agreement on the basis of the failure of such waived condition). In the event that for any reason any item required to be delivered to a party by the other party hereunder shall not be delivered when required, then such other party shall nevertheless remain obligated to deliver the same to the first party, and nothing (including, but not limited to, the closing of the transaction hereunder) shall be deemed a waiver by the first party of any such requirement. If any of the aforesaid conditions is not fulfilled (or otherwise encumbered, it has been releasedwaived in writing) other than interests granted pursuant to the terms of this Agreement, then the party in whose favor such condition exists may terminate this Agreement and (i) provided the Account Control Agreement; (iv) the Borrower has full right failure of such condition is not due to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant default by the Borrower, Delivery of the Collateral and execution of the Account Control non-terminating party under this Agreement, the Collateral Agent has a first priority upon such termination, Seller and Purchaser shall be released from further obligation or liability hereunder (subject to clause except for those obligations and liabilities which expressly survive such termination), and (ii) of provided that such termination is not due to Purchaser’s default hereunder, the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates Xxxxxxx Money shall be paid to Purchaser and documents from the Borrower as the Agents or any Lender this Agreement shall have reasonably requested; andbe null and void.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation (a) The respective obligations of each of the Lenders hereunder Company and the Purchasers to consummate the Closing shall be subject to the conditions precedent that the Facility Agent shall have received satisfaction or waiver, if permissible under applicable law, on or before prior to the Closing Date of the following, each in form and substance reasonably satisfactory to the Facility Agentfollowing conditions: (ai) each no Governmental Entity shall have enacted, issued, promulgated, enforced or entered any judgment, order, law, rule or regulation which is then in effect and has the effect of making the consummation of the Facility Documents duly executed and delivered by transactions contemplated hereby illegal or otherwise restraining or prohibiting consummation of the parties thereto, which transactions contemplated hereby; and (ii) the Transaction shall each be in full force and effect;have closed. (b) true The obligations of each Purchaser to consummate the Closing shall be subject to the satisfaction or waiver by such Purchaser, in its sole discretion and complete copies if permissible under applicable law, on or prior to the Closing Date of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on following conditions: (i) the Closing shall have occurred by the Outside Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Company contained in which case such representations and warranties this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred at and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assignedCompany shall have performed, pledged or otherwise encumbered its interest satisfied and complied in such Collateral (orall material respects with all covenants, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to agreements and conditions required by this Agreement and to be performed, satisfied or complied with by it at or prior to the Account Control Agreement;Closing Date; and (iv) the Borrower has full right to grant Company shall have delivered a security interest certificate of the Secretary or an Assistant Secretary of the Company in and assign and pledge such Collateral form reasonably acceptable to the Collateral AgentPurchasers with respect to the Company’s good standing in its jurisdiction of organization, its organizational documents, and its corporate authorization of the transactions contemplated hereby. (c) The obligations of the Company to consummate the Closing shall be subject to the satisfaction or waiver by the Company, in its sole discretion and if permissible under applicable law, on or prior to the Closing Date of the following conditions: (i) all representations and warranties of the Purchasers contained in this Agreement shall be true and correct as to each Purchaser, severally and not jointly, except as would not have a material adverse effect on such Purchaser’s ability to consummate the transactions contemplated hereby; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender each Purchaser shall have reasonably requested; andperformed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the Closing Date.

Conditions Precedent to Closing. Subject a) The obligations of Purchaser to Section 3.02, effect the obligation of the Lenders hereunder transactions contemplated by this Agreement shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction, at or before prior to the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the FundDate, and the Collateral Manager as in effect continued satisfaction or validity of such conditions on the Closing Date, of all of the following conditions, any one or more of which may be waived by Purchaser: i) Each of the representations and warranties of Seller contained herein shall be true and correct on and as of the Closing Date with the same effect as though the same had been made on and as of such date; (cii) true Seller shall have performed and complete copies certified complied in all material respects with all agreements and covenants required by a Responsible Officer this Agreement to be performed and complied with by Seller prior to or on the Closing Date; and iii) On the Closing Date, there shall exist no injunction or other order issued by any Governmental Authority or court of competent jurisdiction which prohibits the consummation of the Borrower transactions contemplated under this Agreement. b) The obligations of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements Seller to be filed pursuant to clause (g) below), if any, required in connection with effect the transactions contemplated by this Agreement; (d) a certificate Agreement shall be subject to the satisfaction, at or prior to the Closing Date, and the continued satisfaction or validity of a Responsible Officer such conditions on the Closing Date, of all of the Borrower certifying (following conditions, any one or more of which may be waived by Seller: i) as to its Constituent Documents, (ii) as to its resolutions or other action Each of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are of Purchase contained herein shall be true and correct in all material respects on and as of the Closing Date (except to with the extent same effect as though the same had been made on and as of such representations date; ii) Purchaser shall have performed and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct complied in all material respects as of such earlier date), (iv) no Default with all agreements and covenants required by this Agreement to be performed and complied with by Purchaser prior to or Event of Default has occurred and is continuing, and (v) as to on the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Closing Date; and (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of On the Closing Date, to there shall exist no injunction or other order issued by any Governmental Authority or court of competent jurisdiction which prohibits the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery consummation of the Collateral and execution of the Account Control transactions contemplated under this Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company hereunder shall required to be subject to the conditions precedent that the Facility Agent shall have received performed on or before the Closing Date shall be subject, at the followingelection of the Company, each in form and substance reasonably satisfactory to the Facility Agentsatisfaction or waiver, at or prior to the Closing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of each Holder contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date (except to with the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full same force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses effect as though made on and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date. (b) Each Holder shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date be performed and immediately complied with by such Holder at or prior to the delivery thereof on the Closing Date:. (c) Any applicable waiting period under the HSR Act shall have expired or been terminated. (d) The Company shall have received, on terms reasonably satisfactory to the Company, Apollo Management and Blackstone, any consent or waiver necessary under the Credit Agreement to permit the performance of this Agreement and consummation of the Transactions. (e) The stockholders of the Company shall have approved the Issuance as required by Applicable Law. (f) The Holders shall have entered into each of the Supplementary Registration Rights Agreement and the Supplementary Shareholders Agreement. (g) The Holders shall have delivered certificates representing their Shares to the Company. (h) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (i) The concurrent consummation of the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant Exchange by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority Apollo/Blackstone Shareholders (subject to clause (ii) of the definition of Permitted Liens) perfected security interest as defined in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andShareholders Agreement).

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder Neither Agent nor any Lender shall be subject obligated to make the initial Loans, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedent that have been satisfied to Agent’s complete satisfaction or waived in writing by Agent and the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility AgentLenders: (a) Agent shall have received each of the Facility Documents documents, agreements, instruments, reports, certificates and statements set forth on the Schedule of Documents, each duly executed and delivered by the appropriate parties thereto, which shall each be and in full force form and effectsubstance satisfactory to Agent; (b) true payment by Borrower of Agent’s Fees and complete copies of the Constituent Documents of the Borrowerall other fees, the Fundcosts, and the Collateral Manager expenses of closing (including reasonable fees of counsel to Agent invoiced as in effect on of the Closing Date); (c) true and complete copies certified by a Responsible Officer no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the Borrower of all Governmental Authorizationstransactions contemplated hereby or thereby and that, Private Authorizations and Governmental Filings (other than the UCC financing statements in Agent’s sole judgment, would make it inadvisable to be filed pursuant to clause (g) below), if any, required in connection with consummate the transactions contemplated by this AgreementAgreement or any other Loan Document; (d) Agent and each Lender shall have completed their business and legal due diligence, including a certificate of a Responsible Officer Collateral audit and field examination, with results satisfactory to Agent; (e) all of the representations and warranties of Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving under this Agreement and the other Facility Loan Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are shall be true and correct in all material respects as of the Closing Date (at such date, except to the extent any such representations and warranties expressly relate to any an earlier date, date in which case such representations and warranties shall be remain true and correct in all material respects as of such earlier date), date (iv) no Default or Event of Default has occurred and is continuing, and (v) as provided that the foregoing materiality qualifications shall not apply to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its any representations and warranties set forth that already are qualified or modified by materiality in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier datetext thereof), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) received a certificate of a Responsible Officer of the Borrowercertificate, dated as of the Closing Date, to that effect signed by an Authorized Signatory; (f) Agent shall determine that no Material Adverse Effect shall have occurred since the effect that, in the case of each item of Collateral pledged most recent audited Financial Statements delivered to the Collateral Agent, on the Closing Date and immediately Agent prior to the delivery thereof Closing Date; (g) Agent shall have received opinions of counsel addressed to Agent and the Lenders of (i) Winston & Xxxxxx LLP, special counsel to Borrower and (ii) Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, special Maryland counsel to Borrower, each in form and substance satisfactory to Agent; (h) Agent and the Requisite Lenders shall have received and approved Borrower’s Credit Policy, which shall be consistent with those previously represented to Agent; (i) Agent shall have received evidence satisfactory to Agent either that any Person having a Lien (except for Permitted Liens) with respect to the assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the funding of the Loans to be made on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (vj) upon grant all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the Borrowerterms of this Section 2.1 shall control, Delivery and Borrower shall not have any rights under this Agreement or any other Loan Document until each of the Collateral and execution conditions of the Account Control Agreement, the Collateral Agent this Section 2.1 has been complied with to Agent’s satisfaction or specifically waived in a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andwriting by Agent.

Conditions Precedent to Closing. Subject A. In addition to Section 3.02any conditions provided in other provisions of this Agreement, Purchaser’s obligation to purchase the obligation Project is and shall be conditioned on the satisfaction of the Lenders items set forth in this Paragraph 12A (hereinafter referred to as the “Purchaser Conditions Precedent”). The Purchaser Conditions Precedent are intended solely for the benefit of Purchaser and may be waived only by Purchaser in writing. In the event any Purchaser Condition Precedent is not satisfied, Purchaser may, in its sole and absolute discretion terminate this Agreement and all obligations of Purchaser and Seller hereunder (except provisions of this Agreement which recite that they survive termination) shall terminate and be of no further force or effect and the Exxxxxx Money shall be subject paid to Purchaser. (1) The due performance by Seller of each and every covenant, undertaking and agreement to be performed by it hereunder and the conditions precedent that truth of each representation and warranty made in this Agreement by Seller at the Facility Agent time as of which the same is made and as of the Closing as if made on and as of the Closing. (2) That there shall not have received occurred at any time or times on or before the Closing Date any taking or threatened taking of the following, each in form and substance reasonably satisfactory Project or any part thereof by eminent domain. (3) That at no time prior to the Facility Agent:Closing shall any of the following have been done by or against or with respect to Seller: (i) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (ii) the appointment of a trustee or receiver of any property interest; or (iii) an assignment for the benefit of creditors. (a4) each Title Company is prepared to issue the Title Policy in the form approved by Purchaser on or prior to the expiration of the Facility Documents duly executed and delivered by Inspection Period, subject only to the parties thereto, which shall each be in full force and effect;Permitted Exceptions. (b5) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on On the Closing Date;, there shall not then be pending or, to the knowledge of either Purchaser or Seller, threatened, any litigation, administrative proceeding, investigation or other form of governmental enforcement, or executive or legislative proceeding which, if determined adversely, would; restrain the consummation of any of the transactions herein referred to; declare illegal, invalid or non-binding any of the covenants or obligations of the parties herein. (c6) true and complete copies certified by a Responsible Officer Purchaser’s obligations under this Agreement are further conditioned upon execution of the Borrower of all Governmental AuthorizationsAmended Easement and receiving an estoppel certificate (hereinafter referred to as the “Easement Estoppel”) from the Reserve Master Association, Private Authorizations Inc. a Connecticut corporation (hereinafter referred to as the “Reserve”) not less than two (2) days prior to the Closing in a form mutually acceptable to Seller and Governmental Filings Purchaser stating: (other than i) that the UCC financing statements Amended Easement has not been further modified; (ii) there is no event or condition required to be filed pursuant performed by Seller or any other party under the Amended Easement which with notice or the passage of time would constitute a default of Seller thereunder. In the event Seller is unable to clause (g) below)obtain the Easement Estoppel then Seller may, if anybut shall not be so obligated, required in connection with the transactions contemplated by this Agreement; (d) substitute a certificate of a Responsible Officer Seller asserting the above provisions. B. Seller’s obligation to consummate the purchase and sale of the Borrower certifying Project is conditioned upon satisfaction of the items contained in this Paragraph 12B (ihereinafter referred to as the “Seller Conditions Precedent”). The Seller Conditions Precedent are intended solely for the benefit of Seller and may be waived only by Seller in writing. (1) as Purchaser shall have performed and observed in all material respects all covenants and agreements to its Constituent Documents, be performed by Purchaser under this Agreement; and (ii2) as to its resolutions or other action All of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth of Purchaser contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct in all material respects as of the Closing Date (except to the extent such representations when made and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier datethe date of Closing. C. Purchaser’s obligations under this Agreement are further conditioned upon Purchaser receiving Conforming Tenant Estoppel Certificates, as hereinafter defined, not less than two (2) days prior to the Closing from: (i) Boehringer Ingelheim Pharmaceuticals, Inc., (hereinafter referred to as “Drugs”); (ii) Praxair, Inc.; (hereinafter referred to as “Gas”); (iii) RWE Nukem Incorporated (hereinafter referred to as “Sxxxxxx ); and (iv) no Default or Event of Default Honeywell International Inc. a Delaware corporation (hereinafter referred to as “Space”) (hereinafter collectively referred to as the “Minimum Required Estoppels”) addressed to Purchaser. In the event Seller is unable to obtain a Conforming Tenant Estoppel, as hereinafter defined, from Sxxxxxx, then Seller may, but shall not be so obligated, substitute a Conforming Landlord Estoppel Certificate for Sxxxxxx. Such substituted Conforming Landlord Estoppel Certificates shall be counted for all purposes in determining whether Seller has occurred and is continuingachieved the Minimum Required Estoppels. As used in this Agreement, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying term “Conforming Tenant Estoppel Certificate” means: (i) as any Tenant Estoppel Certificate that is dated after February 27, 2007 and is delivered to its Constituent DocumentsPurchaser in the form of said Exhibit “P”, which does not contain any modification or addition that is materially adverse to Purchaser and which does not reveal any default under the affected Lease or condition which with notice and the passage of time would constitute a default and does not contain any matters that are inconsistent with such tenant’s lease and which does not reveal any default under the affected Lease or condition which with notice and the passage of time would constitute a default; or (ii) any Tenant Estoppel Certificate dated after February 27, 2007 in a form containing the information which a tenant is required to address in an estoppel certificate as required by such tenant’s Lease, which does not contain any information or assertion that is materially adverse to its resolutions approving Purchaser and which does not reveal any default under the Collateral Management Agreement affected Lease or condition which with notice and the transactions contemplated therebypassage of time would constitute a default and does not contain any matters that are inconsistent with such tenant’s lease. A “Conforming Landlord Estoppel Certificate” means a certificate executed and delivered by Seller at or prior to the Closing which contains the same information with respect to any affected Leases as would the applicable Conforming Tenant Estoppel Certificate, including acting pursuant and which does not contain any modification or addition that is materially adverse to this AgreementPurchaser and which does not reveal any default under the affected lease or condition which with notice and the passage of time would constitute a default and does not contain any matters that are inconsistent with such tenant’s lease. Any Tenant Estoppel Certificate which is not a Conforming Tenant Estoppel Certificate or a Conforming Landlord Estoppel Certificate, but which is not expressly disapproved by Purchaser in writing within two (iii2) business days after receipt thereof, will also constitute a Conforming Tenant Estoppel Certificate. If Seller fails to deliver the Minimum Required Estoppels at or prior to the date that its representations and warranties set forth in is two (2) days prior to the Collateral Management Agreement are true and correct in all material respects as of Closing Date, then Purchaser shall have the right to extend the Closing Date for an additional fourteen (except 14) days in order to obtain the Minimum Required Estoppels by giving written notice thereof to Seller two (2) days prior to the extent Closing Date. If Seller fails to deliver the Minimum Required Estoppels at or prior to the date that is two (2) days prior to the Closing Date, as same may be so extended pursuant to the provisions of the immediately preceding sentence, then Purchaser’s sole and exclusive remedy with respect to such representations and warranties expressly relate failure will be to any earlier dateterminate this Agreement, in which case such representations the Exxxxxx Money will be refunded in full to Purchaser and warranties shall thereupon this Agreement will be true null and correct in all material respects as void and of such earlier dateno further force and effect whatsoever, except for the terms of this Agreement which expressly survive termination of this Agreement by Purchaser. In the event Seller delivers any Conforming Landlord Estoppel Certificates and later obtains a Conforming Estoppel Certificate with respect to the same Lease, then upon delivery of the Conforming Tenant Estoppel Certificate to Purchaser (whether before or after Closing), (iv) no Default Seller will be automatically and fully released and discharged from any and all liability then or Event of Default has occurred and is continuing, and (v) as thereafter arising with respect to the incumbency Conforming Landlord Estoppel Certificate, which certificate will become null and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each void ab initio immediately upon delivery of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andConforming Tenant Estoppel Certificate.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation (i) Conditions of the Lenders hereunder shall be Investors’ Obligations at the Closing. The obligations of each Investor to consummate the Closing under this Agreement are subject to the conditions precedent that fulfillment, to the Facility Agent shall have received satisfaction of such Investor on or before the Closing Date the following, each in form and substance reasonably satisfactory prior to the Facility AgentClosing, or waiver by such Investor, of the following conditions: (a) each of the Facility Documents duly executed representations and delivered by the parties thereto, which shall each be warranties contained in full force and effect; (b) Section 5 remaining true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as accurate in effect all material respects on the Closing Date; (cb) true the Company having performed and complete copies certified by complied with all of its agreements and obligations contained in this Agreement to which it is a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements party that are required to be filed pursuant to clause (g) below), if any, required in connection performed or complied with by it on or before the transactions contemplated by this Agreementdate of Closing; (dc) a certificate the Company having duly attended to and carried out all corporate procedures that are required under the applicable laws of a Responsible Officer its place of incorporation or establishment to effect its execution, delivery and performance of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Basic Documents to which it is a party party, and the transactions contemplated hereby and thereby, and having provided copies of all resolutions (iiiand all attachments thereto) in accordance with applicable law approving the transactions contemplated hereby; (d) all consents and approvals of, notices to, and filings or registrations with, any Governmental Authority or any other Person required pursuant to any applicable law or regulation of any Governmental Authority having been obtained or made; (e) there having been since the date of this Agreement no material adverse change in the business, operations and financial position of the Group, (f) the Company having delivered to the Investors a Closing Certificate, dated the date of the Closing and signed by an authorized officer of the Company, certifying that its the conditions set forth in paragraphs (a) through (f) of this Section have been satisfied; (g) the Investors having received a Cayman Islands opinion from Xxxxxx and Xxxxxx and dated as of the date of the Closing. (ii) Conditions of the Company’s Obligations at the Closing. The Company’s obligation to complete the sale and issuance of the Notes is subject to the fulfillment, prior to or simultaneously with the Closing, of the following conditions, any one or more of which may be waived by the Company: (a) the representations and warranties set forth contained in the Facility Documents to which it is a party are Section 6 remaining true and correct in all material respects as on the date of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyClosing; (eb) a certificate the Investors having performed and complied with all of a Responsible Officer their agreements and obligations contained in this Agreement that are required to be performed or complied with by it on or before the date of Closing; (c) the Collateral Manager certifying (i) as Investors having duly attended to, and carried out, all corporate procedures that are required under the laws of its place of incorporation or establishment to its Constituent Documentseffect their execution, (ii) as to its resolutions approving the Collateral Management Agreement delivery and performance of this Agreement, and the transactions contemplated hereby and thereby, including acting pursuant to this Agreement, (iii) that its representations required by the applicable law and warranties set forth in the Collateral Management Agreement are true memorandum and correct in all material respects as articles of association of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateInvestors, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) execution, delivery and performance by them of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and all the Account Control Agreement transactions contemplated hereby and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agentthereby; and (vd) upon grant the Investors having duly obtained any and all authorizations, approvals and permits that are required to be obtained by the Borrower, Delivery Investors under applicable law for the purchase of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andNotes.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation The obligations of the Lenders hereunder shall be Parties to consummate the subscription and issuance of the Subscription Shares as contemplated in this Agreement is subject to the satisfaction of the following conditions precedent that (the Facility Agent shall have received “Closing Conditions”) on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility AgentClosing: (a) each 7.1.1. The following shall be the obligations of the Facility Documents duly executed and delivered by the parties thereto, Company which shall each be in full force considered as Conditions Precedent to Closing: 7.1.1.1. The Company has performed all of the covenants and effectundertakings required to be performed under this Agreement prior to Closing; (b) true and complete copies 7.1.1.2. All of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Company contained in which case such representations and warranties Section 10 shall be true and correct in all material respects as of such earlier date)Execution Date and Closing Date; 7.1.1.3. This Agreement has not been terminated in accordance with the terms provided herein; 0.0.0.0. Xx applicable law or other legally binding resolution or order shall be in effect which would restrain or prohibit the Closing, (iv) no Default or Event of Default the other transactions contemplated hereby; 0.0.0.0. Xx material action, proceeding or investigation by or before any court or Governmental Authority has occurred and been initiated, is continuingpending, or threatened, and (v) as to the incumbency and specimen signature no judgment, decree or order has been issued, that would prevent any of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant herein or cause such transactions to be declared unlawful or rescinded; 7.1.1.6. All other conditions to Closing that the Parties may separately agree to in writing have been fulfilled. 7.1.2. The following shall be the Obligations of the Subscribers which shall be considered as Conditions Precedent to Closing: 7.1.2.1. The Subscribers have performed all of the covenants and undertakings required to be performed by each under this Agreement, (iii) that its Agreement prior to Closing; 7.1.2.2. All of the representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Subscribers contained in which case such representations and warranties Section 10 shall be true and correct in all material respects as of such earlier date)Execution Date and Closing; 7.1.2.3. This Agreement has not been terminated in accordance with its terms; 0.0.0.0. Xx applicable law or other legally binding resolution or order shall be in effect which would restrain or prohibit the Closing, (iv) no Default or Event of Default the other transactions contemplated hereby; 0.0.0.0. Xx action, proceeding, or investigation by or before any court or Governmental Authority has occurred and is continuingbeen initiated, pending, or threatened, and no judgment, decree or order has been issued, that would prevent any of the transactions contemplated herein or cause such transactions to be declared unlawful or rescinded; 7.1.2.6. Execution by the Subscribers of a Lock-up Letter in a form attached herewith which is in a form substantially similar to Annex “B”; 7.1.2.7. Execution by the Subscribers of a waiver on all rights to dividends, and all other upside, gain or returns from the businesses, subsidiaries and affiliates of the Company which shall be effective upon execution of this Agreement and shall continue for a period of one (v1) as year period from Completion of all Post Closing Deliverables which shall be in a form substantially similar to Annex “C”; 7.1.2.8. Execution by the Subscribers of an undertaking which reflects that all assets and cash of the Company will be used for its existing businesses (excluding businesses of Wavemaker Group Inc.) and which shall be in a form substantially similar to Annex “D”; 7.1.2.9. The amount due for DST has been deposited by the Subscribers to the incumbency and specimen signature designated account of each of its Responsible Officers authorized the Company; and 7.1.2.10. All other conditions to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions Closing that the Facility Agent deems necessary or desirable Parties may separately agree to in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement writing shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andfulfilled.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company hereunder required to be performed on each Closing Date with respect to the Purchaser shall be subject subject, at its election, to the conditions precedent that satisfaction or waiver (which waiver, if so requested by the Facility Agent Purchaser, shall have received on be made in writing), at or before prior to the Closing Date occurring on such Closing Date, of the following, each in form and substance reasonably satisfactory to the Facility Agentfollowing conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Purchaser contained in which case such representations and warranties this Agreement shall be true and correct in all material respects on and as of such earlier date), Closing Date. (ivb) no Default or Event of Default has occurred The Purchaser shall have performed in all material respects all obligations and is continuingagreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed and complied with by the Purchaser at or prior to such Closing Date. (vc) as All material governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of the transactions contemplated by the Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, the consummation of such transactions does not and will not contravene any Applicable Law, except to the incumbency and specimen signature extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (d) The Purchaser shall have delivered to the Company a certificate, executed by the Purchaser or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of its Responsible Officers authorized the conditions specified in this Section 7.1 has been satisfied with respect to execute the Facility Documents to which it is a party;Purchaser. (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as All documents, instruments, agreements and arrangements relating to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated therebyby the Documents shall be reasonably satisfactory to the Company, including acting pursuant shall have been executed and delivered by the parties thereto and no party to this Agreementany of the foregoing (other than the Company) shall have breached any of its material obligations thereunder. SECTION 7.2. Conditions to The Purchaser's Obligations. The obligations of the Purchaser hereunder required to be performed at each Closing shall be subject, at its election, to the satisfaction or waiver (iiiwhich waiver, if so requested by the Company, shall be made in writing), at or prior to the Closing, of the following conditions: (a) that its The representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Company contained in which case such representations and warranties this Agreement shall be true and correct in all material respects when made and on and as of such earlier date)Closing Date. (b) The Company shall have performed in all material respects all obligations and agreements, (iv) and complied in all material respects with all covenants, contained in this Agreement and the other Documents, to be performed and complied with by it at or prior to such Closing Date, and there shall exist no Default or Event of Default (as defined in the Credit Agreement) under the Credit and Security Agreements. (c) The Company shall have entered into or caused to become effective such agreements and governing documents as the Purchaser may deem reasonably appropriate to effect the provisions of the Voting Agreement, and each of such agreements and documents shall be in full force and effect. (d) The Company's Board of Directors shall consist of not more than 11 directors. If immediately following the subject Closing, the Purchaser would beneficially own securities of the Company that constitute, or if exercised, exchanged or converted into Common Stock would constitute, at least 33-1/3% of the aggregate issued and outstanding Common Stock, provided that the Purchaser has occurred given notice to the Company at least two Business Day's prior to a Closing (without duplication) of its Purchaser Nominees, the Company shall have appointed a total of six of such Purchaser Nominees (or such lessor number as provided by the Purchaser) to serve as members of the Company's Board of Directors. (e) All Documents and all documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be reasonably satisfactory to the Purchaser, shall have been executed and delivered by the parties thereto, be in full force and effect and no party to any of the foregoing (other than the Purchaser) shall have breached any of its material obligations thereunder. (f) (i) Since December 31, 1999, no change, occurrence or development shall have occurred, been threatened or become known to the Purchaser that could reasonably be expected to have a Material Adverse Effect, (ii) the Purchaser shall not have become aware of any information or other matter relating to the Company (x) of which the Company (but not the Purchaser) had knowledge on or prior to the date of this Agreement, (y) that, in the Purchaser's reasonable judgment, is continuinginconsistent with any information or other matter relating to the Company disclosed to the Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (vz) would have been viewed by the Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to the Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(f), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the Company is actually aware of such fact or other matter; or (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity. There shall have been no material adverse development in any pending litigation that in the reasonable good faith judgment of the board of directors of the Purchaser, after consultation with legal counsel, could reasonably be likely to result in a material adverse judgment against the Company resulting in damages (after taking into account any recoveries under available insurance) in an amount in excess of $3,000,000. (g) Since December 31, 1999, the business of the Company shall have been operated in compliance with all Applicable Laws, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. (h) There shall be no litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority pending or threatened which, in the reasonable judgment of the Purchaser, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or its Subsidiaries which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (i) During the seven-calendar-day period ending on such Closing Date, (A) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the over-the-counter market shall not have been suspended and minimum prices shall not have been established on either of such exchanges or such market by such exchange or by the Commission, and (B) a general banking moratorium shall not have been declared by Federal or New York or California authorities. (j) All registration rights agreements with the Company shall have been amended to provide that no other person will exercise any demand or piggy back registration rights without the prior written consent of the Purchaser. (k) All governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of all of the transactions contemplated by the Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, and the Purchaser shall be reasonably satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (l) The Company shall have delivered to the Purchaser a certificate, executed by it or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of the conditions (other than any condition the fulfillment of which is subject to the reasonable satisfaction of the Purchaser) specified in this Section 7.2 has been satisfied. (m) Sidley & Austin, counsel to the Company, shall have delivered to the Purchaser an opinion, dated such Closing Date, addressed to the Purchaser, substantially in the form attached as Exhibit J hereto. (n) The Purchaser shall have received delivery of the Securities as set forth hereunder. (o) The Company shall have delivered to the Purchaser certificates of the appropriate public officials to the effect that each of the Purchaser and its Subsidiaries is a validly existing corporation in good standing in its jurisdiction of organization dated not more than 5 days prior to the Closing Date. (p) The Company shall have delivered to the Purchaser a certificate of the Secretary of the Company (i) certifying that a true and correct copy of the Charter, Bylaws and all resolutions of the Board of Directors authorizing the execution and delivery of this Agreement and each Document to which the Company is a party and authorizing the performance by the Company of the transactions contemplated hereby and thereby is attached thereto and (ii) containing the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;officers of the Company. (fq) proper financing statements, under the UCC in The Company shall have taken all jurisdictions necessary action so that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each at least two thirds of the Secured Parties) Company's then current Board of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to Directors shall have approved the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all election of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andPurchaser Nominees.

Conditions Precedent to Closing. Subject 7.1 Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of such Purchaser contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the extent Closing Date. (c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated. (d) The Company shall have obtained all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and of all other Persons required in connection with the execution, delivery and performance of the Equity Documents or the consummation of the Issuance, such waivers to be satisfactory in form and substance to the Company. (e) Such Purchaser shall have entered into the Registration Rights Agreement. (f) The Shares to be purchased at the Closing shall be issued for an aggregate amount of no less than $600,000,000.00. 7.2 Conditions to Each Purchaser's Obligations. The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions: (a) The representations and warranties expressly relate to any earlier date, of the Company contained in which this Agreement (i) shall have been true and correct when made and (ii) shall be (A) in the case such of representations and warranties shall be that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects as respects, in the case of such earlier dateclauses (A) and (B), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties b) The Company shall be true and correct have performed in all material respects as all of such earlier date), (iv) no Default its obligations and agreements and complied in all material respects with all covenants contained in this Agreement to be performed and complied with at or Event of Default has occurred and is continuing, and (v) as prior to the incumbency Closing Date. (c) The Company shall have entered into the Registration Rights Agreement. (d) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware. (e) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;no litigation arising therefrom shall have been commenced and remain outstanding. (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement The Company shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) such Purchaser a certificate of executed on its behalf by a Responsible Officer of the Borrowerduly authorized representative, dated as of the Closing Date, to the effect thatthat each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied. (g) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (h) Such Purchaser shall have received an opinion of (i) H. Xxx Xxxxxx, General Counsel of the Company and (ii) X'Xxxxxxxx Graev & Karabell, LLP, special counsel to the Company, in the each case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on dated the Closing Date:, and addressed to such Purchaser, covering the matters set forth in Exhibit D, in form and substance reasonably acceptable to the Purchaser. (i) Such Purchaser shall have received certificates representing the Borrower is Securities purchased by such Purchaser concurrently with the owner Company's receipt of the Purchase Price for such Collateral free and clear of Securities. (j) There shall not have occurred (i) any liensevent, claims circumstance, condition, fact, effect or encumbrances of any nature whatsoever except for other matter which has had or could reasonably be expected to have a material adverse effect (Ax) those which are being released on the Closing Datebusiness, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole or (By) those granted pursuant on the ability of the Company and its Subsidiaries to perform on a timely basis any material obligation under this Agreement and or the Account Control Agreement and (C) Permitted Liens; other Equity Documents or to consummate the Issuance contemplated hereby; or (ii) the Borrower has acquired its ownership any material disruption of or material adverse change in such Collateral financial, banking or capital market conditions. (k) The Share Exchange Agreement shall be in good faith without notice full force and effect and there shall not have been any amendment or waiver of any adverse claim, except as described in clause (i) above;of its material terms or conditions. (iiil) The Company shall have delivered duly executed copies of the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral Management Rights Agreements to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;HMTF Funds. (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender The Company shall have reasonably requested; andmade all filings with, given all notices to, and received all approvals from, all Governmental Authorities (including, without limitation, the Federal Communications Commission and state public utility commissions) required in connection with the consummation of the Transactions, unless the failure to make such filings, give such notices or receive such approvals would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the ability of the Company to consummate the Transactions.

Conditions Precedent to Closing. Subject SECTION 5.1. Conditions to Section 3.02, Each Party's Obligations. The obligations of a party hereunder required to be performed on the obligation of the Lenders hereunder Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each The representations and warranties of the Facility Documents duly executed other party contained in this Agreement and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of other party's parent contained in the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying Registration Rights Agreement (i) as to its Constituent Documents, shall have been true and correct when made and (ii) as to its resolutions or other action shall be (A) in the case of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in the Facility Documents to which it is a party are all other cases, true and correct in all material respects respects, in the case of clauses (A) and (B), as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties b) The other party shall be true and correct have performed in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each all of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documentsobligations, (ii) as to its resolutions approving the Collateral Management agreements and covenants contained in this Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct other party's parent shall have performed in all material respects as all of its obligations, agreements and covenants contained in the Registration Rights Agreement to be performed and complied with at or prior to the Closing Date. (c) The parent of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement party shall have been executed entered into the Registration Rights Agreement and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and such agreements shall be in full force and effect;. (jd) evidence satisfactory The other party shall have delivered to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) such party a certificate of executed by it or on its behalf by a Responsible Officer of the Borrowerduly authorized representative, dated as of the Closing Date, to the effect that, that each of the conditions specified in paragraphs (a) through (c) of this Section 5.1 has been satisfied. (e) Any applicable waiting period under the case of each item of Collateral pledged HSR Act with respect to the Collateral Agent, on consummation of the Closing Date and immediately prior to the delivery thereof on the Closing Date:Transactions shall have expired or been terminated. (if) the Borrower is the owner of such Collateral free and clear No provision of any liensApplicable Law, claims or encumbrances any injunction, order or decree of any nature whatsoever except for (A) those Governmental Entity shall be in effect which are being released on has the Closing Date, (B) those granted pursuant to this Agreement and effect of making the Account Control Agreement and (C) Permitted Liens;Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (iig) All necessary orders and permits approving the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;Transactions from all applicable state regulatory authorities shall have been obtained. (iiih) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender The Stockholder Approval shall have reasonably requested; andbeen obtained.

Conditions Precedent to Closing. Subject to Section 3.02, the 3.01 The obligation of the Lenders hereunder shall be Assignor to complete the sale of the Assignor's Interest pursuant hereto is subject to the following conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agentbeing satisfied: (a) each of the Facility Documents duly executed all covenants, representations and delivered warranties made by the parties thereto, which Vendor hereunder shall each be in full force have been complied with and effect; (b) remain true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on at the Closing Date; (b) at the Closing Date, the purchase and sale hereby agreed to shall comply with all legal requirements and restrictions; (c) true and complete copies certified by a Responsible Officer the Vendor shall have delivered to the Parent Company, share certificates for 800,000 common shares of the Borrower Parent Company, and free and clear of all Governmental Authorizationscharges, Private Authorizations liens and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement;encumbrances; and (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, no suit, action or other proceeding is pending or threatened before any court or government agency which might result in impairment or loss of the Property. The foregoing conditions shall be for the exclusive benefit of the Assignor and may, without prejudice to any of the rights of the Assignor hereunder (Bincluding reliance on or enforcement of warranties or covenants which are preserved dealing with or similar to the condition or conditions waived) those granted pursuant be waived by it in writing, in whole or in part, at any time. In case any of the said conditions shall not be complied with, or waived by the Assignor, at or before the Closing, the Assignor may rescind and terminate this agreement by written notice to this Agreement the Vendor and, in such event, the Assignor and the Account Control Agreement Vendor shall be released from all obligations hereunder. 3.01 The obligation of the Vendor to complete the purchase of the Assignor's Interest pursuant hereto is subject to the following conditions being satisfied: (a) all covenants, representations and (C) Permitted Lienswarranties made by the Assignor hereunder shall have been complied with and remain true at the Closing Date; (iib) at the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claimClosing Date, except as described in clause (i) abovethe purchase and sale hereby agreed to shall comply with all legal requirements and restrictions; (iiic) at the Borrower has not assignedwritten request of the Vendor, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement the Assignor and the Account Control Agreement; (iv) Parent Company shall have caused to be recorded in the Borrower has full right office of the governmental agency, the transfer, to grant the Vendor of a security 75% undivided interest in and assign and pledge such Collateral to the Collateral AgentProperty; and (vd) upon grant on the Closing Date, no suit, action or other proceeding is pending or threatened before any court or government agency which might result in impairment or loss of the Property. The foregoing conditions shall be for the exclusive benefit of the Vendor and may, without prejudice to any of the rights of the Vendor hereunder (including reliance on or enforcement of warranties or covenants which are preserved dealing with or similar to the condition or conditions waived) be waived by it in writing, in whole or in part, at any time. In case any of the said conditions shall not be complied with, or waived by the BorrowerVendor, Delivery of at or before the Collateral and execution of the Account Control AgreementClosing, the Collateral Agent has a first priority (subject Vendor may rescind and terminate this agreement by written notice to clause (ii) of the definition of Permitted Liens) perfected security interest Assignor and, in such event, the Collateral;Vendor and the Assignor shall be released from all obligations hereunder. (m) such other opinions3.02 At the Closing, instrumentsprovided that all conditions precedent have been satisfied or waived, certificates and documents from the Borrower as the Agents or any Lender Agreement shall have reasonably requested; andterminate.

Conditions Precedent to Closing. Subject (a) Buyer's obligation to Section 3.02, effect the obligation of the Lenders hereunder Merger shall be subject to satisfaction of all of the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each set forth in form and substance reasonably satisfactory to the Facility Agent:this subparagraph 7.1 (a) (unless expressly waived in writing by it at, or any time prior to, Closing): (i) The representations and warranties of the Shareholders, CDFG and the Subsidiaries contained in this Agreement or in any certificate delivered pursuant hereto by or on behalf of the Shareholders, CDFG, or any Subsidiary shall have been true and complete when -50- 56 made and shall also be true and complete at and as of the time of Closing (except for changes permitted under Section 5.1 of Article V). (ii) The Shareholders, CDFG, and each Subsidiary shall have caused all covenants, agreements and conditions required by this Agreement to be performed or complied with by each of them prior to or at Closing to be so performed or complied with. (iii) The Shareholders shall have delivered to Buyer a certificate, signed by each of the Facility Documents duly executed Shareholders and dated as of the Closing, certifying as to the fulfillment of the conditions set forth in clauses (i) and (ii) of this subparagraph 7.1(a). (iv) The President of CDFG and each Subsidiary shall have delivered to Buyer a certificate, signed by each of them and dated as of the parties theretoClosing, which certifying as to the fulfillment of the conditions set forth in clauses (i) and (ii) of this subparagraph 7.1(a). (v) No action or proceeding shall each have been instituted and remain pending by or before any court or other governmental body or arbitration tribunal seeking, and there shall not be in full force effect any injunction, order or decree of a court of competent jurisdiction the effect of which is, (x) to restrain or prohibit or to recover damages in respect of the transactions contemplated by this Agreement, (y) to revoke or suspend any material license, permit, order or approval, or (z) to question the validity or legality of this Agreement or any action taken or to be taken pursuant hereto or the consummation of the transactions contemplated hereby, and effect;there shall be no such action or proceeding pending which, if adversely determined, would materially and adversely affect, or injunction, order or decree in effect which materially and adversely affects, the business, financial condition and operations of CDFG or any Subsidiary. (bvi) true The NASD Approval shall have been obtained. (vii) All lessors under leases and complete parties to agreements of CDFG and each Subsidiary, other than such leases and agreements which do not require consent for the consummation of the transactions contemplated by this Agreement, shall have consented in writing to the consummation of the transactions contemplated hereby. At Closing, the Shareholders shall deliver to Buyer copies of all consents referred to in the Constituent Documents preceding sentence. (viii) The Shareholders shall have furnished Buyer with an opinion of counsel as to the status of the BorrowerShareholders, the FundCDFG, and each Subsidiary and the Collateral Manager as transactions contemplated by this Agreement substantially in effect on the Closing Date;form of Exhibit G. (cix) true and complete copies certified by a Responsible Officer Since December 31, 1999, except as set forth on Schedule 7.1, there shall not have been any material adverse change in the business, financial condition or operations of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings CDFG or any Subsidiary. (other than the UCC financing statements to be filed pursuant to clause (gx) below), if any, required All corporate proceedings in connection with the transactions contemplated by this Agreement, and all documents and instruments incident thereto, shall be reasonably satisfactory in all material respects in substance and form to Buyer; (dxi) The Employment Agreements attached hereto as Exhibit C shall have been executed by Michxxx Xxxxxx (xii) [omitted] -52- 58 (xiii) The originals (to the extent reasonably available to the Shareholders) or duplicates of all of the minute books, stock books and all other corporate and business records or documents of CDFG and each Subsidiary shall have been delivered or made available to Buyer; (xiv) Either an affidavit that the Shareholders is not a certificate foreign person (as provided in I.R.C. Sec. 1445(b)(2) or an affidavit of CDFG and each Subsidiary that complies with I.R.C. Sec. 1445(b)(3) shall have been properly executed. (xv) All books and records of CDFG and Subsidiary shall have been delivered or made available to Buyer at a location specified by Buyer. (xvi) The holders of a Responsible Officer majority of the Borrower certifying CDFG Common Stock entitled to vote shall have approved this Agreement by written consent or at a duly noticed annual or special meeting of CDFG's shareholders. (xvii) At Closing, the consolidated net working capital of CDFG and its Subsidiaries shall be at least the Minimum Combined Net Working Capital; the net capital of First Colonial shall be at least the Minimum Required Focus Net Capital; and CDFG shall have at least $800,000 in cash on hand, excluding any amounts contributed by Buyer hereunder and any capital attributable to NW Holdings, Inc. or First Level Securities, Inc. (xviii) The Shareholders shall have provided the Financial Statements to Buyer. (xix) The Shareholders shall have executed the Closing Escrow Agreement and shall have pledged the Closing Escrow Shares pursuant thereto. (xx) CDFG shall have delivered the Certificate of Merger. (xxi) The results of Buyer's due diligence of CDFG and Subsidiary shall be satisfactory to Buyer in its sole discretion. (xxii) The Shareholders shall have executed a Stockholders Agreement in the form of Exhibit F hereto. (xxiii) Holders of no more than an aggregate of 400,000 shares of CDFG Common Stock shall have failed to grant their consent to the Merger. (b) The Shareholders' obligation to close the Merger shall be subject to satisfaction of all of the conditions set forth in this subparagraph 7.1 (b) (unless expressly waived in writing by it at, or any time prior to, Closing): (i) The representations and warranties of Buyer contained in this Agreement or in any certificate delivered pursuant hereto by or on behalf of Buyer shall have been true and complete when made and shall also be true and complete at and as to its Constituent Documents, of the time of Closing. (ii) Buyer shall have caused all covenants, agreements and conditions required by this Agreement to be performed or complied with by it prior to or at Closing to be so performed or complied with. (iii) Buyer shall have delivered to the Shareholders a certificate, signed by its chairman, president or a vice president, and dated as of the Closing, certifying as to its resolutions the fulfillment of the conditions sat forth in clauses (i) and (ii) of this subparagraph 7.1(b). (iv) There shall not be in effect any injunction, order or other decree of a court of competent jurisdiction that prohibits or delays consummation of the Merger and no action or proceeding alleging that the consummation of its board the Merger violates or will violate any federal or state law, rule or regulation shall have been instituted by or before any court or governmental body to restrain or prohibit the Shareholders from selling, or to recover damages from the Shareholders in respect of directors or members approving this Agreement the Merger, unless Buyer elects to fully indemnify and defend the Shareholders in respect thereof. (v) The NASD Approval shall have been obtained. (vi) Buyer shall have furnished CDFG and the other Facility Documents Shareholders with an opinion of counsel as to which it is a party the status of Buyer and the transactions contemplated thereby, (iii) that its representations and warranties set forth by this Agreement substantially in the Facility Documents to which it is a party are true form of Exhibit H. (vii) All corporate proceedings in connection with the transactions contemplated by this Agreement and correct all documents and instruments incident thereto, shall be reasonably satisfactory in all material respects in substance and form to the Shareholders. (viii) Buyer shall have furnished evidence to the reasonable satisfaction of the Shareholders of a contribution of the sum of $500,000 to CDFG to be used as set forth in Section 2.9 hereof. (ix) Buyer shall have delivered the Merger Consideration to the Shareholders in such amounts as described in Paragraph 2.2 hereof, subject to the contribution of the Closing Date (except Escrow Shares pursuant to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Closing Escrow Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;Paragraph 2.8 hereof. (iiix) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery The board of the Collateral and execution directors of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender Buyer shall have reasonably requested; andapproved this Agreement.

Conditions Precedent to Closing. Subject to The Definitive Agreement shall provide that the Transactions are expressly conditioned upon the following: a. NXT shall have delivered Audited Financial Statements, as described in Section 3.02, 1(b). b. The Company shall have satisfied all of its periodic reporting requirements with the obligation of the Lenders hereunder shall be subject Securities and Exchange Commission prior to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the FundClosing, and the Collateral Manager as in effect on the Closing Date; (c) true Company shall deliver to NXT all necessary materials, financial and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable otherwise in order to perfect continue and maintain accurate records and filings with the interests in Securities and Exchange Commission. The Company will work with the Collateral contemplated SEC approved auditor identified by this Agreement; (g) copies NXT to coordinate the filing of proper financing statementsa Form 8-K, if any, necessary the Company will direct current financial representatives to release prepare a copy of all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existencecurrent financial records; and the Account Control Agreement Company will direct current financial representatives to issue letter expressing satisfaction of all filings to be included in a Form 8-K; and c. All third party and other consents required for the Transaction shall have been executed and delivered obtained; and d. The Transaction shall have been approved by all necessary entity action on the Borrowerpart of NXT, the Collateral Agent Company and the Custodian as Securities Intermediary and any subsidiary in accordance with all applicable law; and e. No action, suit or proceeding shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Dateinstituted or, to the effect thatknowledge of the parties, be pending or threatened before any court or other governmental body by any public agency or governmental authority seeking to restrain, enjoin or prohibit the Transaction or to seek damages or other relief in connection therewith against any member of management of either NXT or the case of each item of Collateral pledged Company; and f. No action, suit or proceeding shall have been instituted or, to the Collateral Agentknowledge of the parties, on be pending or threatened before any court or other governmental body by any private party, public agency or governmental authority seeking to restrain, enjoin or prohibit the Closing Date and immediately Transaction or to seek damages or other relief in connection therewith against any member of management of either NXT or the Company. The Company shall indemnify NXT against potential litigation arising from activities prior to the delivery thereof on Transaction, and NXT shall indemnify the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral Company against potential litigation arising from activities prior to the Collateral AgentAcquisitions; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each Conditions Precedent to the Obligations of the Facility Documents duly executed NTI and delivered by the parties thereto, which shall each be in full force Newco. The obligations of NTI and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements Newco to be filed pursuant to clause (g) below), if any, required in connection with consummate the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer Agreement are subject to the satisfaction at or prior to the Closing of the Borrower certifying following conditions: (i) as to its Constituent Documents, (ii) as to its resolutions or other action The representations and warranties of its board of directors or members approving the Shareholders and the Company contained in this Agreement and the in any certificate or other Facility Documents document delivered pursuant to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its except for representations and warranties set forth in the Collateral Management Agreement which are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateby their terms qualified by materiality, in which case such representations and warranties shall be true and correct in all material respects respects) as of the Closing Date with the same force and effect as though made on and as of such earlier date. (ii) All of the terms, covenants and conditions of this Agreement to be performed or complied with by the Shareholders and the Company on or prior to the Closing Date shall have been duly performed or complied with in all material respects. (iii) There shall not have occurred any Material Adverse Effect. (iv) The Shareholders and the Company shall have obtained all authorizations, waivers, consents and approvals of, and made all filings, applications and notices with, Persons which are necessary or advisable to consummate the transactions contemplated by this Agreement, each of which shall have been obtained without the imposition of any adverse term or condition. (v) NTI and Newco shall have received from legal counsel to the Shareholders and the Company, an opinion letter, dated the Closing Date, in a form reasonably satisfactory to NTI and Newco. (vi) The Shareholders and the Company shall have delivered to Newco a certificate executed by an officer of the Company, dated the Closing Date, certifying in such detail as Newco may reasonably request, that the conditions specified in Sections 6(a)(i), (ii), (iii), (iv), (viii) no Default or Event of Default has occurred and is continuing, and (vix) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;have been fulfilled. (fvii) proper financing statementsJohan Olstenius, under Stuart Campbell and Fahim Ahmed shall have executed and xxxxxxxxx xx Xxxco the UCC in all jurisdictions that Xxxxxxxxxx Agreements, the Facility Agent deems necessary or desirable in order Stock Option Agreements and the Subscription Agreements. (viii) Li-Chen Liu shall have executed and delivered to perfect NTI the interests in Xxxxxxxetition Agreement. (ix) All authorizations, approvals, waivers, consents, filings, applications and notices required by governmental authorities for the Collateral consummation of the transactions contemplated by this Agreement; (g) copies , including without limitation, authorizations under the laws of proper financing statements, if any, necessary the ROC governing foreign investment for Newco to release all security interests and other rights of any Person establish a branch office in the Collateral previously granted by ROC and/or which are reasonably necessary for the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each operation of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement Purchased Assets on a going concern basis consistent with past practices shall have been executed made or obtained; and delivered by all of such items shall have been obtained without the Borrowerimposition of any term or condition which would adversely affect NTI, Newco or the Collateral Agent and the Custodian as Securities Intermediary and Purchased Assets. (x) No litigation, arbitration or other proceeding shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Datepending or, to the effect thatKnowledge of the Parties, threatened by or before any court, arbitration panel or governmental authority; no law or regulation shall have been enacted after the date of this Agreement; and no judicial or administrative decision shall have been rendered; in each case, which enjoins, prohibits or materially restricts, or seeks to enjoin, prohibit or materially restrict, the case consummation of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to transactions contemplated by this Agreement and or the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery operation of the Collateral and execution of the Account Control Agreement, the Collateral Agent has Purchased Assets on a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andgoing concern basis by Newco.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder Neither Agent nor any Lender shall be subject obligated to make the initial Loans, or to take, fulfill, or perform any other action under this Agreement, until the following conditions precedent that have been satisfied to Agent’s complete satisfaction or waived in writing by Agent and the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility AgentLenders: (a) Agent shall have received each of the Facility Documents documents, agreements, instruments, reports, certificates and statements set forth on the Schedule of Documents, each duly executed and delivered by the appropriate parties thereto, which shall each be and in full force form and effectsubstance satisfactory to Agent; (b) true and complete copies payment by Borrower of the Constituent Documents of the BorrowerAgent’s Fees and all other fees, the Fundcosts, and the Collateral Manager expenses of closing (including reasonable fees of counsel to Agent invoiced as in effect on of the Closing Date); (c) true and complete copies certified by a Responsible Officer no action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, Governmental Authority or legislative body to enjoin, restrain or prohibit, or to obtain damages in respect of, or that is related to or arises out of, this Agreement or any other Loan Document or the consummation of the Borrower of all Governmental Authorizationstransactions contemplated hereby or thereby and that, Private Authorizations and Governmental Filings (other than the UCC financing statements in Agent's sole judgment, would make it inadvisable to be filed pursuant to clause (g) below), if any, required in connection with consummate the transactions contemplated by this AgreementAgreement or any other Loan Document; (d) Agent and each Lender shall have completed their business and legal due diligence, including a certificate of a Responsible Officer Collateral audit and field examination, with results satisfactory to Agent; (e) all of the representations and warranties of Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving under this Agreement and the other Facility Loan Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are shall be true and correct in all material respects as of the Closing Date (at such date, except to the extent any such representations and warranties expressly relate to any an earlier date, date in which case such representations and warranties shall be remain true and correct in all material respects as of such earlier date), date (iv) no Default or Event of Default has occurred and is continuing, and (v) as provided that the foregoing materiality qualifications shall not apply to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its any representations and warranties set forth that already are qualified or modified by materiality in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier datetext thereof), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) received a certificate of a Responsible Officer of the Borrowercertificate, dated as of the Closing Date, to that effect signed by an Authorized Signatory; (f) Agent shall determine that no Material Adverse Effect shall have occurred since the effect that, in the case of each item of Collateral pledged most recent audited Financial Statements delivered to the Collateral Agent, on the Closing Date and immediately Agent prior to the delivery thereof Closing Date; (g) Agent shall have received opinions of counsel of (i) Winston & Xxxxxx LLP, special counsel to Borrower and (ii) Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, special Maryland counsel to Borrower, each in form and substance satisfactory to Agent; (h) Agent shall have received and approved Borrower’s Credit Policy, which shall be consistent with those previously represented to Agent and shall be acceptable to Agent in its sole discretion; (i) Agent shall have received evidence satisfactory to Agent either that any Person having a Lien (except for Permitted Liens) with respect to the assets of Borrower shall have released such Lien or that such Lien shall be automatically terminated upon the funding of the Loans to be made on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (vj) upon grant all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Agent. If any other term of any Loan Document should conflict, or appear to conflict, with this Section 2.1, the Borrowerterms of this Section 2.1 shall control, Delivery and Borrower shall not have any rights under this Agreement or any other Loan Document until each of the Collateral and execution conditions of the Account Control Agreement, the Collateral Agent this Section 2.1 has been complied with to Agent’s satisfaction or specifically waived in a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andwriting by Agent.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate In addition to any earlier date, conditions provided in which case such representations and warranties shall be true and correct in all material respects as other provisions of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations Purchaser’s obligation to purchase the Property is and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), conditioned on the following (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;“Purchaser Closing Condition”): (i) evidence satisfactory That at no time prior to the Facility Agent that all Closing shall any of the Covered Accounts are following have been done by or against or with respect to Seller or an affiliate of Seller and, as a result thereof, Seller cannot perform its obligations under this Agreement: (i) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (ii) the appointment of a trustee or receiver of any property interest; or (iii) an assignment for the benefit of creditors. (ii) On the Closing Date, there shall not be any uncured Unpermitted Exception or any violation of or non-compliance with any law, ordinance, order or requirement relating to the Property which is imposed in existence; writing and delivered to Seller by any governmental authority relating to the Account Control Agreement Property that would have a material adverse affect on the Property, which is not remedied by Seller. As used herein, the term “material adverse affect” means any one or more conditions that would result in a cost of not less than $100,000 in the aggregate or affect the income of the Property by not less than $25,000 annually, in the aggregate. (iii) If the transaction contemplated hereby shall require authorization or approval of any governmental agency having jurisdiction over the Property, all such authorizations and approvals shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary obtained and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses effect on and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, . If such authorizations and approvals shall not have been obtained on or prior to the effect thatlast day for Closing hereinabove provided, the Closing Date may be deferred, at the election of either party, for an additional period of time, not to exceed 30 days, as shall be necessary to obtain any authorizations or approvals not then obtained. (iv) There shall be no more than five (5) Tenant Claims, or any number of Tenant Claims in excess of $25,000 in the aggregate, outstanding at Closing that have not been cured by Seller. (v) There shall be no active remediation activities at the Property in an amount more than $25,000 for any single occurrence with respect to mold, water damage, fungi, bacteria or other biological growth or biological growth factors at the Property. (vi) Seller has delivered to Purchaser at Closing a reaffirmation of the representations and warranties (“Seller’s Reaffirmation of Representation and Warranties”) executed by Seller, in the case form of each item of Collateral pledged Exhibit N attached hereto and made a part hereof. (vii) Seller shall have delivered to the Collateral Agent, on Purchaser no later than five (5) days prior to the Closing Date a Retail Tenant Estoppel Certificate that is consistent in all material respects with the form of Exhibit X hereto from all of the following retail tenants (the “Select Tenants”): Apogee Telecomm, Inc., Longhorns Market, Board of Regents of the University of Texas and immediately prior Cingular, relating to their respective leases of retail space in the delivery thereof on the Improvement as described in Section 1(b) hereof and Exhibit A-2. (b) If there is a failure of a Purchaser Closing Date: Condition, Purchaser can either (i) waive such failure and close this transaction, or (ii) notify Seller in writing that Purchaser has elected to terminate this Agreement and obtain a return of the Borrower is Xxxxxxx Money (which notice shall specify the owner details of such Collateral free and clear failure); provided, however, that a termination by Purchaser for a failure of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on a Purchaser Closing Condition shall not become effective until the Closing Date, (B) those granted pursuant to and then only if the Purchaser Closing Condition shall not have been satisfied by such time and date. In event of termination for a failure of a Purchaser Closing Condition Purchaser shall receive a full refund of the Xxxxxxx Money, and except as may be specifically set forth elsewhere in this Agreement and the Account Control Agreement and (C) Permitted Liens;Agreement, neither party shall have any further liability hereunder. (iic) the Borrower has acquired its ownership in such Collateral in good faith without notice A failure of any adverse claim, except as described in clause (i) above; (iii) the Borrower has Purchaser Closing Condition under this Section 20 shall not assigned, pledged limit or supersede any remedy to which either party is otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to entitled under this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has including (without limitation) any remedy for a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents default or any Lender shall have reasonably requested; andbreach.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation The closing of the Lenders hereunder shall sale of the Shares contemplated by this Agreement will be subject to the satisfaction of the following conditions precedent that (the Facility Agent shall have received on “Conditions Precedent”), any of which may be waived by Purchaser, in whole or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agentpart: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its 4.1 The representations and warranties of the Corporation set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, . 4.2 All of the covenants and obligations that Seller is required to the effect that, in the case of each item of Collateral pledged perform or to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted comply with pursuant to this Agreement at or prior to the Closing, and each of these covenants and obligations, shall have been duly performed and complied with in all material respects. 4.3 The holders of the Corporation’s Series A Preferred Stock (the “Preferred A Holders”) and the Account Control Agreement holders of the Corporation’s common stock shall have executed and delivered to and in favor of the Corporation and the Purchaser any and all consents to, and waivers in respect of, the Transaction, as mandated by the (Ci) Permitted Liens; Certificate of Incorporation (as amended and restated), (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claimSeries A Convertible Preferred Stock Purchase Agreement between the Corporation and the Preferred A Holders dated August 29, except as described in clause 2018 (i) above; the “Preferred A SPA”), and (iii) the Borrower has not assignedAugust 29, pledged or otherwise encumbered its interest in such Collateral (or2018 Investor Rights Agreement between the Corporation, if any such interest has been assignedthe Preferred A Holders, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control holders of the Corporation’s issued and outstanding common stock (the “Rights Agreement; ”), such consent to include, inter alia, (ivx) the Borrower has full right to grant a security interest in and assign and pledge such Collateral consent to the Collateral Agent; and (v) upon grant by the Borrower, Delivery composition of the Collateral and execution Board (as that term is hereinafter defined), (y) consent to the issuance of the Account Control AgreementShares to the Purchaser, the Collateral Agent has and (z) a first priority (subject to clause (ii) waiver of the definition of Permitted Liens) perfected security interest preemptive purchase rights set forth in the Collateral;Rights Agreement. (m) such other opinions4.4 Each of the Purchaser and the Corporation shall be satisfied, instrumentsin its sole discretion, certificates with the results of its due diligence investigations in respect of the Transaction. 4.5 The boards of directors of each of the Purchaser and documents from the Borrower as the Agents or any Lender Corporation shall have reasonably requested; andapproved the Transaction.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder (a) The Closing shall be subject to the following conditions precedent that in favour of the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility AgentHolder: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Owner contained in which case such representations and warranties this Agreement shall be true and correct in all material respects (or, in the case of the representations and warranties that are subject to a materiality qualification, in all respects) at the time of Closing, with the same force and effect as if such representations and warranties were made at and as of such earlier datetime; (ii) all approvals, consents and authorizations necessary for the consummation of the transactions contemplated by this Agreement shall have been obtained, including, without limitation, (i) the Disinterested Shareholders Approval, and (ii) the conditional acceptance by the TSXV of the Closing and issuance of the Royalty (which shall be subject only to customary closing conditions), ; (iii) closing of the transactions contemplated by the Bond Subscription Agreement shall have occurred or shall occur concurrently with Closing; (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth Owner shall be in the Collateral Management Agreement are true and correct compliance in all material respects as with its obligations under this Agreement; (v) no Insolvency Event shall have occurred with respect to the Owner; (vi) no legal or regulatory action or proceeding shall be pending or threatened by any Person which would, in the opinion of Holder, acting reasonably, enjoin, restrict or prohibit the transactions contemplated hereby; and (vii) delivery to the Holder of the Closing Date documents contemplated by Section 5.3; If any of the conditions precedent set out in this Section 5.1(a) shall not be complied with or waived by the Holder on or before 5:00 p.m. (except Montreal time) on September 15, 2020, then the Holder may rescind and terminate its obligations to purchase the Royalty pursuant to this Agreement by written notice to the extent Owner in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of the Holder’s breach of this Agreement, in which event the Parties shall have no further liability except as provided under this Agreement. (b) The Closing shall be subject to the following conditions precedent in favour of the Owner: (i) the representations and warranties expressly relate to any earlier date, of the Holder contained in which case such representations and warranties this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect thator, in the case of each item the representations and warranties that are subject to a materiality qualification, in all respects) at the time of Collateral pledged to Closing, with the Collateral Agent, on the Closing Date same force and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner effect as if such representations and warranties were made at and as of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Lienstime; (ii) all approvals, consents and authorizations necessary for the Borrower has acquired its ownership in such Collateral in good faith consummation of the transactions contemplated by this Agreement shall have been obtained, including, without notice of any adverse claimlimitation, except as described in clause (i) abovethe Disinterested Shareholders Approval, and (ii) the conditional acceptance by the TSXV of the Closing and issuance of the Royalty (which shall be subject only to customary closing conditions); (iii) closing of the Borrower has not assigned, pledged transactions contemplated by the Bond Subscription Agreement shall have occurred or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreementshall occur concurrently with Closing; (iv) the Borrower has full right to grant a security interest Holder shall be in and assign and pledge such Collateral to compliance in all material respects with its obligations under this Agreement; (v) no legal or regulatory action or proceeding shall be pending or threatened by any Person which would, in the Collateral Agentopinion of Holder, acting reasonably, enjoin, restrict or prohibit the transactions contemplated hereby; and (vvi) upon grant delivery to the Owner of the documents contemplated by Section 5.2; If any of the conditions precedent set out in this Section 5.1(b) shall not be complied with or waived by the BorrowerOwner on or before 5:00 p.m. (Montreal time) on September 15, Delivery 2020, then the Owner may rescind and terminate its obligations to sell the Royalty to the Holder pursuant to this Agreement by written notice to the Holder in circumstances where the failure to satisfy any such condition is not the result, directly or indirectly, of the Collateral and execution Owner’s breach of the Account Control this Agreement, in which event the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender Parties shall have reasonably requested; andno further liability except as provided under this Agreement.

Conditions Precedent to Closing. Subject to Section 3.02, the 3.1 The obligation of the Lenders hereunder shall be subject Purchaser to consummate the Closing is conditional on the satisfaction or waiver of all of the following on or prior to the conditions precedent that Longstop Date: 3.1.1 the Facility Agent Parties shall have received on or before the Closing Date the following, each written approvals (in a form and substance reasonably satisfactory to the Facility Agent: (aPurchaser) each of the Facility Documents duly executed and delivered RCC in connection with the acquisition by the parties theretoPurchaser of the Sale Securities, which and such approval shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager effect as in effect on at the Closing Date; (c) true and complete copies certified by a Responsible Officer 3.1.2 each of the Borrower Sellers shall have obtained all necessary written consents, approvals or waivers (which for this purpose shall include the expiry of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements any period following a notification such that consent is deemed to be filed pursuant given or no consent is required) in relation to clause the execution and performance by each of them of this Agreement in accordance with its terms and each of the other Transaction Documents in accordance with their respective terms; 3.1.3 each of the Sellers shall have obtained all and any other authorizations, consents and approvals of any Governmental Authority or third party (gwhich for this purpose shall include the expiry of any period following a notification such that consent is deemed to be given or no consent is required) below), if any, required in connection with for the consummation of the transactions contemplated by this Agreement; (d) a certificate 3.1.4 there shall not be any injunction, decision, order or decree of a Responsible Officer any nature of any court or Governmental Authority, or any proceeding pending or threatened that could result in such an injunction, decision, order or decree, restraining, prohibiting or preventing any aspect of the Borrower Transaction; 3.1.5 there shall not have been any action, or any statute, law or regulation enacted by any Governmental Authority which would cause any Party to be unable to consummate any aspect of the Transaction, make any aspect of the Transaction illegal or prohibit, restrict or delay the consummation of any aspect of the Transaction; 3.1.6 the Purchaser or its Affiliate shall have received such opinions from its financial advisor reasonably satisfactory to the Purchaser with respect to the terms of the Transaction; 3.1.7 the Purchaser shall have received the Closing Statement containing the Estimated Adjustment Amount; 3.1.8 the Purchaser shall have received a certificate, dated as of the Closing Date, signed by duly authorized officers of each of the Sellers, as to the continued and valid existence of the Target Companies, certifying and attaching copies of: (i) as to its Constituent Documents, the organizational documents of each Target Company; and (ii) as to its resolutions or other action each of its board of directors or members approving the documents set out in Clauses 3.1.2 and 3.1.3; 3.1.9 the Sellers and their Affiliates shall have performed and complied in all respects with all covenants and agreements required by this Agreement and or any of the other Facility Transaction Documents to which it is a party and be performed or complied with by the transactions contemplated thereby, (iii) that its representations and warranties set forth in Sellers or their Affiliates on or prior to the Facility Documents to which it is a party are Closing Date; 3.1.10 the Warranties given by the Sellers shall be true and correct accurate in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statementsor, if anynot true, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered remedied (at the cost of the Sellers) to the reasonable satisfaction of the Purchaser; 3.1.11 no event or circumstance, individually or in the aggregate, shall have occurred or be outstanding that may have a Material Adverse Effect; 3.1.12 all Encumbrances over any immovable or movable property owned by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and Target Companies shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, removed on or prior to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior the Purchaser shall use its reasonable endeavours to assist in the removal of such Encumbrances, including at the sole discretion of the Purchaser, providing a loan to the delivery thereof on Target Companies to assist with the Closing Daterepayment of any of their debt obligations; 3.1.13 subject to the Purchaser providing funding to the Target Companies of approximately Euro 18.5 million to repay the portion of the ING Existing Facility that is attributable to the Target Companies, the Target Companies ceasing to be parties, whether as borrowers or as guarantors, to the ING Existing Facility, and being released by the bank of any and all obligations under the ING Existing Facility and the ING Security Interests in a manner reasonably satisfactory to the Purchaser and the Purchaser shall use its reasonable endeavours to assist the Target Companies ceasing to be parties to the ING Existing Facility, being released from any and all obligations under the ING Existing Facility and the ING Security Interests, including at the sole discretion of the Purchaser, providing funding to the Target Companies to repay the portion of the ING Existing Facility that is attributable to the Target Companies in order to assist with such actions; 3.1.14 in respect of the Shareholder Loans: (i) the Borrower Guarantor procuring that any Shareholder Loans for which Media Pro Management is not already a creditor, is assigned to Media Pro Management by the owner entities set out in the column "Creditors" in Schedule 7 to Media Pro Management by way of legal assignment signed by all parties thereto and Media Pro Management, such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except that Media Pro Management shall become the creditor for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liensall Shareholder Loans; (ii) Media Pro Management causing the Borrower has acquired its ownership Converted Shareholder Loans to be capitalized by the cancellation of such Converted Shareholder Loans in such Collateral in good faith without notice exchange for the issuance of any adverse claim, except as described in clause (i) above;new equity by the relevant Target Company; and (iii) Media Pro Management producing evidence reasonably satisfactory to the Borrower has not assigned, pledged or otherwise encumbered its interest in Purchaser that such Collateral (or, if any such interest capitalization has been assignedcompleted, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and including the Account Control Agreementregistration of such change in the equity of the relevant Target Company with the Romanian Trade Registry; (iv) 3.1.15 the Borrower has full right to grant a security interest in and assign and pledge such Collateral Sellers shall have procured that Media Pro Management shall have delivered to the Collateral Agent; and (v) upon grant by Purchaser evidence satisfactory to the Borrower, Delivery Purchaser of the Collateral and execution assignment to Media Pro Management of receivables owing from Specific Related Parties to the Target Companies that would otherwise constitute all or any part of the Account Control Agreement, the Collateral Agent has a first priority (subject Gross Receivable by MPE from Specific Related Parties to clause (ii) of the definition of Permitted Liens) perfected security interest be specified in the CollateralSchedule 9; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and

Conditions Precedent to Closing. Subject to Section 3.02, the 3.1 The obligation of the Lenders hereunder shall be subject Purchaser to consummate the conditions precedent that Closing is conditional on the Facility Agent shall have received satisfaction or waiver of all of the following on or before the Closing Date the following, each in form and substance reasonably satisfactory prior to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date: 3.1.1 there shall not be any injunction, decision, order or decree of any nature of any court or Governmental Authority, or any proceeding pending or threatened that could result in such an injunction, decision, order or decree, restraining, prohibiting or preventing any aspect of the Transaction; (c) 3.1.2 there shall not have been any action, or any statute, law or regulation enacted by any Governmental Authority which would cause any Party to be unable to consummate any aspect of the Transaction, make any aspect of the Transaction illegal or prohibit, restrict or delay the consummation of any aspect of the Transaction; 3.1.3 the Seller and its Affiliates shall have performed and complied with all covenants and agreements required by this Agreement or any of the other Transaction Documents to be performed or complied with by the Seller or its Affiliates on or prior to the Closing Date, except for any non-performance or non-compliance of any covenant or obligation in Clause 5.1 or Clause 5.2 that does not have a Material Adverse Effect; 3.1.4 the Warranties given by the Seller shall be true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects accurate as of the Closing Date (except for breaches and inaccuracies that do not have a Material Adverse Effect (such exception not applying to the extent Fundamental Warranties) and/or have been remedied (at the cost of the Seller) to the reasonable satisfaction of the Purchaser); 3.1.5 the completion of the capitalisation and/or retirement or other settlement of the Intercompany Loans in accordance with Clause 3.12; and 3.1.6 the Seller shall have terminated the Intra-Group Agreements to the reasonable satisfaction of the Purchaser. 3.2 The obligation of the Seller to consummate the Closing is conditional on the satisfaction or waiver of all of the following on or prior to the Closing Date: 3.2.1 there shall not be any injunction, decision, order or decree of any nature of any court or Governmental Authority, or any proceeding pending or threatened that could result in such representations an injunction, decision, order or decree, restraining, prohibiting or preventing any aspect of the Transaction; 3.2.2 there shall not have been any action, or any statute, law or regulation enacted by any Governmental Authority which would cause any Party to be unable to consummate any aspect of the Transaction, make any aspect of the Transaction illegal or prohibit, restrict or delay the consummation of any aspect of the Transaction; 3.2.3 the Purchaser and warranties expressly relate its Affiliates shall have performed and complied in all material respects with all covenants and agreements required by this Agreement or any of the other Transaction Documents to any earlier date, in which case such representations and warranties be performed or complied with by the Purchaser or its Affiliates on or prior to the Closing Date; and 3.2.4 the Warranties given by the Purchaser shall be true and correct accurate in all material respects as at Closing or, if not true, shall have been remedied (at the cost of such earlier date), the Purchaser) to the reasonable satisfaction of the Seller. 3.3 The sale and purchase of the Target Companies’ Shares is conditional on: (iva) no Default or Event the SMC granting its unconditional approval in a final and legally binding decision in respect of Default has occurred and is continuing, the proposed acquisition by the Purchaser of the Slovenian Target and (vb) Competition Approvals having been granted or deemed as having been granted under applicable law (collectively, the “Purchaser Regulatory Approvals”) to the Purchaser. 3.4 The Purchaser shall use its best endeavours to procure that all notifications to the SMC and Competition Authorities under this Agreement shall be submitted not later than 15 (fifteen) calendar days following the Execution Date (other than notifications to the Slovenian Competition Protection Agency, where the deadline shall be 30 calendar days following the Execution Date) (the “Notifications”) and that all additional information and documents requested by SMC and/or Competition Authorities, are provided promptly throughout the relevant notification process. Subject to applicable law and regulation, the Seller shall provide such information to the Purchaser regarding the businesses and affairs of the Target Companies as the Purchaser may reasonably require in connection with the notifications which the Purchaser is required to make to the SMC and/or the Competition Authorities and will timely provide any and all information and documents as requested by the SMC and/or the Competition Authorities, observing, in each case, the deadline set out by the SMC and/or the Competition Authorities. 3.5 Notwithstanding any other provision in this Agreement, the Purchaser shall not be obligated to accept any undertakings, conditions or obligations (if any) as may be requested or imposed by the Competition Authorities during the approval process or with respect to their decisions in relation to the incumbency acquisition of the Target Companies’ Shares by the Purchaser. For the avoidance of doubt, this Clause is without prejudice to the payment of the termination fee by the Purchaser, if required by Clause 3.7. 3.6 For the purposes of Clauses 3.4 and specimen signature 3.7, the Purchaser must: (a) promptly notify the Seller of each of its Responsible Officers authorized any communication (whether written or oral) to execute or from the Facility Documents to which it is a partySMC and/or the Competition Authorities and, whenever available, English translations thereof; (eb) a certificate give the Seller reasonable notice of a Responsible Officer all meetings and telephone calls initiated by the Purchaser and of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of telephone calls initiated by the Closing Date SMC and/or the Competition Authorities in connection with the Purchaser’s Regulatory Approvals with the SMC and/or the Competition Authorities and ensure that, where practicable, the Seller (or Seller’s advisers) are present and have an opportunity to participate in them (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary SMC and/or the Competition Authorities expressly requests that a party should not be present at the meeting or desirable in order to perfect parts of the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferormeeting); (hc) legal opinions provide the Seller with drafts of all written communications (addressed including, for the avoidance of doubt, all email communications), in English, related to each the Purchaser’s Regulatory Approvals and intended to be sent to the SMC and/or the Competition Authorities, give the Seller a reasonable opportunity to comment on them and include comments reasonably requested by the Seller where such comments would not be reasonably expected to prejudice the prospects of obtaining the Purchaser Regulatory Approvals or otherwise prejudice the position of the Secured Parties) Target Companies, the Purchaser and/or any of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to their Affiliates in their dealings with the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably requestregulatory authorities; (id) evidence satisfactory provide the Seller with final copies of all such communications, except that in relation to the Facility Agent that all disclosure under this sub-clause, business secrets and other confidential material of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall Purchaser may be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agentredacted; and (ve) upon grant without prejudice to Clause 3.4, act in good faith in considering any undertaking or condition requested by the BorrowerCompetition Authorities which is not a Material Remedy. 3.7 The Purchaser shall use its best endeavours to procure (so far as it is so able to procure) that the Purchaser Regulatory Approvals are received on or before 31 December 2017 (the “Long Stop Date”). If the Purchaser Regulatory Approvals have not been obtained by the Long Stop Date and the Purchaser is using its best endeavours to procure the Purchaser Regulatory Approvals at such time, Delivery the Purchaser is entitled to, by written notice to the Seller served not less than two Business Days prior to the then current Long Stop Date, extend the Long Stop Date by a calendar month, and references to “Long Stop Date” in this Agreement shall be deemed to refer to the extended Long Stop Date (“Extension Right”). The Purchaser may exercise its Extension Right up to three times. If the Purchaser Regulatory Approvals are not obtained by the Long Stop Date, either Party may terminate the Agreement in accordance with Clause 12 (and Clause 12.4 shall apply) and, the Purchaser shall pay to the Seller by wire transfer within five (5) Business Days of the Collateral and execution termination date a fee equal to EUR 7,000,000 (save that such fee shall not be payable: (i) if the Purchaser Regulatory Approvals are not obtained as a result of the Account Control AgreementPurchaser being required prior to, or still being required as at, the Collateral Agent has a first priority (subject date of the Long Stop Date to clause offer any Material Remedy and failing to do so; or (ii) where the Purchaser has made the Notifications pursuant to Clause 3.4 and one or more of the Competition Authorities have failed to declare the Notification complete). 3.8 Insofar as permitted under applicable law, the Purchaser may, in its sole discretion, at any time waive, in whole or in part, conditionally or unconditionally, any of the Conditions Precedent set out in Clause 3.1 by notice in writing to the Seller. 3.9 Insofar as permitted under applicable law, the Seller may, in its sole discretion, at any time waive, in whole or in part, conditionally or unconditionally, any of the Conditions Precedent set out in Clause 3.2 by notice in writing to the Purchaser. 3.10 The Parties shall keep each other adequately informed and up to date with respect to their progress toward the satisfaction of their respective Conditions Precedent. 3.11 The Parties shall use their reasonable endeavours to satisfy the Conditions Precedent for which they are responsible by the due date for their satisfaction, but in the event that any Party becomes aware that it will not be able to satisfy any such Condition Precedent in Clauses 3.1 and 3.2 on or before the due date, such Party shall promptly, and in any event not less than ten (10) Business Days before the due date, provide written notice to other Party of its inability to satisfy such Condition Precedent. 3.12 The Seller shall procure that the Intercompany Loans are capitalised, contributed or converted into equity securities of the Target Companies (in which event such securities shall be included in the definition of Permitted LiensTarget Companies’ Shares and transferred to the Purchaser at Closing (without increase to the Purchase Price in consequence thereof) perfected security interest or otherwise contributed to the equity capital of the Target Companies and the obligations of the Target Companies pursuant to the Intercompany Loans are released irrevocably and in full, in each case without cost to the Collateral;Target Group and prior to Closing. The Purchaser’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned) shall be required if the Intercompany Loans are to be retired or otherwise settled other than as aforesaid. (m3.13 To the extent that, prior to Closing, the Intercompany Loans are not capitalised and/or retired in accordance with Clause 3.12 and the obligations of the Target Companies pursuant to the Intercompany Loans are not otherwise released, in each case in full or in part, Clauses 2.5, 10.6 and 11.1(b) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andapply.

Conditions Precedent to Closing. Subject (a) Conditions to Section 3.02, the Company's Obligation. The Company's obligation of to -------------------------------------- issue the Lenders Shares hereunder shall be is subject to the conditions precedent performance by each Purchaser at or prior to the Closing hereof of all of the agreements of each such Purchaser contemplated to be performed hereunder at or prior to the Closing and to the satisfaction of the further condition that the Facility Agent representations and warranties of the Purchasers contained in Section 4 hereof shall have received on be true and correct as of the Closing, or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each waiver of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect;such performance or satisfaction. (b) true Conditions to Each Purchaser's Obligations. The obligations of each ------------------------------------------ Purchaser to purchase the Shares and complete copies to execute and deliver the amendment to the Shareholders' Agreement contemplated by this Agreement are subject to satisfaction of the Constituent Documents following conditions: (i) the Purchasers shall have received opinions, addressed to them and dated as of the BorrowerClosing, from Xxxxxx Xxxxxx & Xxxxxxx and Xxxxxx X. Newborn, II, Esq., General Counsel of the FundCompany, addressing the matters set forth in Exhibits D-1 and the Collateral Manager as in effect on the Closing DateD-2 attached hereto; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and (A) the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth of the Company contained in the Facility Documents to which it is a party are Section 3 shall be true and correct in all respects, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect, on and as of the Closing Date (except to with the extent same effect as though such representations and warranties expressly relate had been made as of the Closing and (B) there shall have been no Material Adverse Change; (iii) the Company shall have complied in all material respects with all agreements hereunder required to be performed by it at or prior to the Closing; (iv) the Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware; (v) (A) the By-laws and (B) the Shareholders' Agreement each shall have been amended as contemplated by this Agreement by all necessary corporate action on the part of the Company and the Shareholders; (vi) no action, suit, or proceeding shall be pending or threatened before any earlier datecourt or quasi-judicial or administrative agency of any federal, state, local or foreign jurisdiction or before any arbitrator wherein an unfavorable injunction, judgment, order, decree, ruling or charge would (A) prevent consummation of any of the transactions contemplated by any Operative Document or (B) affect adversely the Company's right to own its assets and to operate its business; and no such injunction, judgment, order, decree, ruling or charge shall be in which case such effect; (vii) the Company shall have delivered to the Purchasers a certificate, dated as of the Closing, signed on behalf of the Company by the Chairman of the Board of Directors and Chief Executive Officer of the Company and by the President and Chief Operating Officer of the Company to the effect that, to their knowledge, (A) the representations and warranties shall be of the Company contained in Section 3 are true and correct in all respects, or true and correct in all material respects as of where such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true not qualified by materiality or Material Adverse effect, on and correct in all material respects as of the Closing Date (except to with the extent same effect as though such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects had been made as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, the Closing and (vB) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyother conditions specified in (ii)-(vi) above and (xiii)-(xiv) below has been satisfied; (fviii) proper financing statementsthe Purchasers shall have received a certificate, under dated as of the UCC in all jurisdictions Closing, signed by the Secretary or an Assistant Secretary of the Company and certifying that attached thereto is a true, correct and complete copy of (A) the Company's By-laws and (B) resolutions duly adopted by the Executive Committee of the Board of Directors of the Company authorizing the execution and delivery of the Operative Documents; (ix) the Purchasers shall have received certificates (or copies thereof) dated as of a recent date from the Secretary of State of the State of Delaware to the effect that the Facility Agent deems necessary or desirable Company is duly incorporated and in order good standing in such state, stating that the Company owes no franchise taxes in such state and listing all documents of the Company on file with said Secretary of State; (x) the Purchasers shall have received a copy of the Company's Certificate of Incorporation, including all amendments thereto, certified as of a recent date by the Secretary of State of the State of Delaware; (xi) the Purchasers shall have received evidence, reasonably satisfactory to perfect the interests Purchasers, of the authority and incumbency of the persons acting on behalf of the Company in connection with the Collateral contemplated by execution of any document delivered in connection with this Agreement; (gxii) copies of proper financing statements, if any, necessary to release all security interests the Purchasers shall have received the Audited Financial Statements and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor)Unaudited Financial Statements; (hA) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel amendment to the Borrower and the Collateral Manager as to corporateShareholders' Agreement contemplated by this Agreement and, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agentextent necessary, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement transactions contemplated thereby shall have been executed and delivered approved by the Borrower, the Collateral Agent Requisite Securityholders and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement each other Operative Document and all of the Account Control Agreement and (C) Permitted Liens; (ii) transactions contemplated thereby shall have been approved by the Borrower has acquired its ownership in such Collateral in good faith without notice requisite number of any adverse claim, except as described in clause (i) above; (iii) holders of shares of capital stock or other equity securities of the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral AgentCompany; and (vxiv) upon grant by the Borrower, Delivery existing securityholders of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender Company shall have reasonably requested; andwaived any preemptive rights such securityholders may have to acquire Series Y Preferred Stock to the extent necessary to permit the Purchasers collectively to purchase at least $32,500,013 of Shares.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders hereunder Company with respect to Purchasers required to be performed on the Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver in writing, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of each Purchaser contained in the Facility Documents to this Agreement which it is a party are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all material respects as of and the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in of such Purchaser which case such representations and warranties are not so qualified shall be true and correct in all material respects respects, in each case on and as of such earlier date), (iv) no Default or Event of Default has occurred the date hereof and is continuing, on and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations Date, as if made on and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), the Closing Date. (ivb) no Default or Event Each of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Equity Documents to which it a Purchaser is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement party shall have been executed and delivered by the Borrowersuch Purchaser. Each Purchaser shall have performed in all material respects all obligations and agreements, the Collateral Agent and complied in all material respects with all covenants contained in this Agreement and the Custodian as Securities Intermediary Equity Documents to be performed and complied with by such Purchaser at or prior to the Closing Date. (c) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (d) The Company shall have received the required consent of the senior lenders under the Credit Agreement to the Transactions. (e) All approvals of the disinterested directors of the Company and any approvals and consents of all court, governmental, agencies and third- parties necessary in connection with the issuance of the Series A Preferred Stock shall have been received and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that effect and all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender applicable waiting periods shall have reasonably requested; andexpired without any action being taken by any applicable authority.

Conditions Precedent to Closing. Subject to Section 3.02, the The obligation of the Lenders to make Advances hereunder comprising the initial Borrowing shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, Borrower and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (gf) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members or manager approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or manager approving this Agreement and the Collateral Management Agreement other Facility Documents to which it is a party and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) to the best of its knowledge, no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, amendments, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured PartiesParties and DBRS) of (i) Xxxxxxxx & Xxxxxxxx Dechert LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody Xxxxxxx and Xxxxxx LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent it that all of the Covered Accounts are in existenceshall have been established; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to it that the Borrower shall have paid (i) the fees to be received by Natixis on or prior to the Closing Date pursuant to this Agreement and each other Facility Document; (ii) the accrued fees and expenses in connection with the transactions contemplated hereby of (A) Ashurst LLP, counsel to the Facility Agent that all and Lenders, (B) Sidley Austin LLP, counsel to DBRS, and (C) Xxxxxxx and Xxxxxx LLP, counsel to the Collateral Agent; and (iii) the fees to be received by DBRS on or prior to the Closing Date Expenses pursuant to the engagement letter dated as of April 18, 2012 between H.I.G. Whitehorse Holdings, LLC and outstanding fees and expenses of the Collateral Agent have been paid in full;DBRS. (k) each a Retention of Net Economic Interest Letter substantially in the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effectform of Exhibit G; (l) Delivery of the Collateral (including any promissory note, executed assignment agreements and copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each initial Collateral Obligation) in accordance with Section 12.20 shall have been effected; (m) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (mn) the Facility Agent has received a rating letter satisfactory to the Facility Agent, delivered and signed by DBRS and confirming that the Facility has been assigned at least a “AA” rating by DBRS; (o) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and (p) all legal and due diligence matters incident to this Agreement and the other Facility Documents shall be satisfactory to the Borrower, the Facility Agent, the Lenders and their respective counsel; (q) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Closing Date: (i) each Collateral Quality Test is satisfied; (ii) each Coverage Test is satisfied; (iii) the Advance Rate Test is satisfied; (iv) no Commitment Shortfall exists; and (v) with respect to any Collateral Obligation with a Credit Estimate, such Credit Estimate has been assigned by DBRS within one year prior to the Closing Date. (r) evidence that the Borrower has directed the Collateral Agent to deposit the Closing Expense Account Amount into the Closing Expense Account for use pursuant to Section 8.12; (s) a certificate of a Responsible Officer of the Borrower or the Collateral Manager, dated as of the Closing Date, specifying the Applicable Row Level to be in effect for purposes of the Matrix; and (t) a certificate of a Responsible Officer of the Collateral Manager, dated as of the Closing Date, certifying that each Collateral Obligation owned by the Borrower as of the Closing Date satisfies the requirements of the definition of “Collateral Obligation”.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation 6.1 Parties’ conditions precedent. The obligations of the Lenders hereunder shall be Parties to complete the purchase of the Purchased Shares under this Agreement are subject to the conditions precedent that the Facility Agent shall have received on satisfaction of, or compliance with, at or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agenttime of Closing: (a) the Key Regulatory Approvals shall have been obtained; and (b) no action or proceeding at law or in equity shall be pending by any Governmental Authority or Person to enjoin or prohibit the purchase or transfer of any of the Purchased Shares contemplated by this Agreement or the right of the Selling Stockholders to dispose of any of the Purchased Shares. 6.2 Parties’ waiver of conditions precedent. The conditions precedent set forth in section 6.1 hereinabove are for the exclusive benefit of each of the Facility Documents duly executed Parties hereto and delivered may be waived by each or any of the Parties in writing and in whole or in part at any time on or prior to the Closing Date. 6.3 Selling Stockholders’ conditions precedent. The obligations of the Selling Stockholders to complete the sale of the Purchased Shares are subject to the satisfaction of, or compliance with, at or before the time of Closing, each of the following conditions precedent: (a) all of the representations and warranties of UEC made in or pursuant to this Agreement shall be true and correct as at the time of Closing, except as such representations and warranties may be affected by the parties theretooccurrence of events or transactions expressly contemplated and permitted by this Agreement, which and extent that the failure or failures of such representations and warranties to be so true and correct, individually or in the aggregate, would not have a material adverse effect on UEC (disregarding for this purpose any materiality or material adverse effect qualifiers contained in such representations and warranties), and the Selling Stockholders shall each be in full force have received a certificate from a senior officer of UEC confirming to his or her knowledge (after due inquiry), and effectwithout personal liability, the truth and correctness of such representations and warranties; (b) true UEC shall have performed or complied with, in all material respects, all its obligations and complete copies of the Constituent Documents of the Borrower, the Fundcovenants under this Agreement to be performed by it prior to Closing, and the Collateral Manager Selling Stockholders shall have received a certificate from a senior officer of UEC confirming to his or her knowledge (after due inquiry), and without personal liability, such performance or compliance, as the case may be; (c) UEC shall have complied with all applicable securities Laws in effect connection with the issuance of the Shares to the Selling Stockholders on or before the Closing Date; (cd) true and complete copies certified by a Responsible at the time of Closing, Xxxx Xxxxxx shall be the Chief Executive Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this AgreementUEC; (de) a certificate the PR Pre-Closing Reorganization shall have been completed; and (f) the Approved Distribution shall have been completed. 6.4 Selling Stockholders’ waiver of a Responsible Officer conditions precedent. The conditions precedent set forth in section 6.3 hereinabove are for the exclusive benefit of each of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement Selling Stockholders and the other Facility Documents Companies and may be waived by any one of the Pacific Road Funds (on behalf of all Selling Stockholders) in writing, and in whole or in part, at any time after the Effective Date and prior to which it is a party and the transactions contemplated therebyClosing Date. 6.5 UEC’s conditions precedent. The obligations of UEC to complete the purchase of the Purchased Shares are subject to the satisfaction of, or compliance with, at or before the time of Closing, each of the following conditions precedent: (iiia) that its all of the representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except Selling Stockholders made in or pursuant to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties this Agreement shall be true and correct in all material respects as at the time of Closing, except as such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in may be affected by the Collateral Management occurrence of events or transactions expressly contemplated and permitted by this Agreement are true (including, for certainty, the PR Pre-Closing Reorganization), and correct in all material respects as of the Closing Date (except to the extent that the failure or failures of such representations and warranties expressly relate to be so true and correct, individually or in the aggregate, would not have a material adverse effect on the Companies (disregarding for this purpose any earlier date, materiality or material adverse effect qualifiers contained in which case such representations and warranties warranties), and UEC shall be true have received a certificate from a senior officer of each Selling Stockholder confirming to his or her Knowledge, and correct without personal liability, the truth and correctness of such representations and warranties; (b) the Selling Stockholders shall have performed or complied with, in all material respects as of such earlier date)respects, (iv) no Default or Event of Default has occurred all their respective obligations and is continuingcovenants under this Agreement to be performed by it prior to Closing, and (v) as to the incumbency and specimen signature UEC shall have received a certificate from a senior officer of each of its Responsible Officers authorized Selling Stockholder confirming to execute his or her Knowledge, and without personal liability, such performance or compliance, as the Facility Documents to which it is a partycase may be; (fc) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests Approved Distribution shall have been completed and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel UEC shall reasonably request; (i) have received evidence satisfactory to it that, following such Approved Distribution, the Facility Agent Companies shall have a positive net working capital position after consideration of any other financial obligations that all may arise as a result of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral AgentTransaction; and (vd) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender UEC shall have reasonably requested; andreceived the executed BHI Counterpart Signature Page. 6.6 UEC’s waiver of conditions precedent. The conditions precedent set forth in section 6.5 hereinabove are for the exclusive benefit of UEC and may be waived by UEC in writing, and in whole or in part, at any after the Effective Date and prior to the Closing Date.

Conditions Precedent to Closing. Subject to Section 3.02, the The obligation of Purchaser to consummate the Lenders hereunder shall be transactions contemplated by this Agreement is subject to the satisfaction of the following conditions precedent that the Facility Agent shall have received on or before the Closing Date Date. a) All governmental filings, authorizations and approvals that are required for the following, each in form consummation of the transactions contemplated hereby shall have been duly made and substance obtained on terms and conditions reasonably satisfactory to Purchaser, including all filings required by the Facility Agent: (a) each Hart-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 of the Facility Documents duly executed and delivered by United States of America or the parties thereto, EC Merger Regulation as amended or under the law of any other jurisdiction in which shall each be in full force and effect; (b) true and complete copies of Purchaser or Seller does business having authority over the Constituent Documents of the Borrower, the Fundtransactions contemplated hereby, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below)waiting period, if any, required by such statutes or regulations shall have terminated or expired. b) No proceeding brought by any third party or governmental entity shall be pending or threatened which seeks any injunction, restraining order or other order which would prohibit consummation of the transactions contemplated hereby or materially impair the ability of Purchaser to own and operate the business and the assets of the Company and its Subsidiaries after the Closing Date. particular, making all necessary filings with any applicable governmental entity and cooperating with each other in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as such filings and any other responses to its Constituent Documentsgovernmental entities; provided, (ii) as however, that in no event shall Purchaser be obligated to its resolutions consider, or consummate, any sale, disposition, segregation or other action of arrangement affecting any assets or properties owned by either Purchaser or its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agentaffiliates, on the Closing Date one hand, or by the Company and immediately prior to the delivery thereof its Subsidiaries, on the Closing Date: (i) other hand, on account of the Borrower is transaction contemplated herein, or any other action which would limit the owner freedom of such Collateral Purchaser and its affiliates to own and operate their business, assets and properties as they see fit. Seller shall assist Purchaser free and clear of any lienscharge in the pertinent procedures and, claims or encumbrances of any nature whatsoever except for (A) those which are being released in particular, provide the necessary information on the Closing Date, (B) those granted pursuant Companies for filings to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant be made by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andPurchaser.

Conditions Precedent to Closing. Subject The Company’s obligation to Section 3.02, complete the obligation purchase and sale of the Lenders hereunder Securities and deliver stock certificate(s) and Warrants to the Purchaser at the Closing shall be subject to the conditions precedent that following conditions, any one or more of which may be waived in writing by the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: Company: (a) each receipt by the Company of same-day funds in the full amount of the Facility Documents duly executed and delivered by purchase price for the parties thereto, which shall each be in full force and effect; Securities being purchased hereunder; (b) true and complete copies completion of the Constituent Documents purchases and sales under the Agreements with Purchasers of Securities having an aggregate purchase price of at least eight million US dollars ($8,000,000); (c) the accuracy of the Borrower, the Fund, representations and the Collateral Manager warranties (as in effect if such representations and warranties were made on the Closing Date; (c) true made by the Purchasers and complete copies certified by a Responsible Officer the fulfillment of those undertakings and covenants of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements Purchasers required to be filed fulfilled prior to the Closing; (d) the Purchaser shall have executed and delivered to the Company the Registration Statement Questionnaire attached hereto as part of the Questionnaire, pursuant to clause which the Purchaser shall provide information necessary to confirm such Purchaser’s status as an “accredited investor” as defined in Rule 501 promulgated under the Securities Act; (ge) below), if any, required in connection no proceeding challenging this Agreement or any of the Agreements with any of the Other Purchasers or the transactions contemplated hereby or thereby or seeking to prohibit, alter, prevent or materially delay the Closing shall have been instituted or shall be pending before any court, arbitrator or governmental body, agency or official; and (f) the sale of Securities shall not be prohibited by this Agreement; (d) a certificate of a Responsible Officer any law or governmental order or regulation. The Purchaser’s obligation to accept delivery of the Borrower certifying stock certificate(s) and Warrants and to pay for the Securities evidenced thereby shall be subject to the conditions: (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iiix) that its the representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted made by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts Company herein are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated accurate as of the Closing Date, ; (y) that the Company has fulfilled all undertakings and covenants set forth herein required to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately be fulfilled prior to the delivery thereof Closing; and (z) that the Common Stock shall be quoted on the Closing Date: (i) Nasdaq National Market System and the Borrower is the owner of such Collateral free Shares and clear of any liens, claims or encumbrances of any nature whatsoever except Warrant Shares duly approved for (A) those which quotation thereon. The Purchaser’s obligations hereunder are being released expressly conditioned on the Closing Date, purchase of Securities having an aggregate purchase price among all Purchasers of at least eight million US dollars (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and$8,000,000).

Conditions Precedent to Closing. Subject 7.1 Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of such Purchaser contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the extent Closing Date. (c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated. (d) The Company shall have obtained all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and of all other Persons required in connection with the execution, delivery and performance of the Equity Documents or the consummation of the Issuance, such waivers to be satisfactory in form and substance to the Company. (e) Such Purchaser shall have entered into the Registration Rights Agreement. (f) The Shares to be purchased at the Closing shall be issued for an aggregate amount of no less than $600,000,000.00. 7.2 Conditions to Each Purchaser's Obligations. The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions: (a) The representations and warranties expressly relate to any earlier date, of the Company contained in which this Agreement (i) shall have been true and correct when made and (ii) shall be (A) in the case such of representations and warranties shall be that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects as respects, in the case of such earlier dateclauses (A) and (B), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties b) The Company shall be true and correct have performed in all material respects as all of such earlier date), (iv) no Default its obligations and agreements and complied in all material respects with all covenants contained in this Agreement to be performed and complied with at or Event of Default has occurred and is continuing, and (v) as prior to the incumbency Closing Date. (c) The Company shall have entered into the Registration Rights Agreement. (d) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware. (e) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;no litigation arising therefrom shall have been commenced and remain outstanding. (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement The Company shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) such Purchaser a certificate of executed on its behalf by a Responsible Officer of the Borrowerduly authorized representative, dated as of the Closing Date, to the effect thatthat each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied. (g) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (h) Such Purchaser shall have received an opinion of (i) H. Don Teague, General Counsel of the Company and (xx) X'Xxllivan Graev & Karabell, LLP, special counsel tx xxx Xxmpany, in the each case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on dated the Closing Date:, and addressed to such Purchaser, covering the matters set forth in Exhibit D, in form and substance reasonably acceptable to the Purchaser. (i) Such Purchaser shall have received certificates representing the Borrower is Securities purchased by such Purchaser concurrently with the owner Company's receipt of the Purchase Price for such Collateral free and clear of Securities. (j) There shall not have occurred (i) any liensevent, claims circumstance, condition, fact, effect or encumbrances of any nature whatsoever except for other matter which has had or could reasonably be expected to have a material adverse effect (Ax) those which are being released on the Closing Datebusiness, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole or (By) those granted pursuant on the ability of the Company and its Subsidiaries to perform on a timely basis any material obligation under this Agreement and or the Account Control Agreement and (C) Permitted Liens; other Equity Documents or to consummate the Issuance contemplated hereby; or (ii) the Borrower has acquired its ownership any material disruption of or material adverse change in such Collateral financial, banking or capital market conditions. (k) The Share Exchange Agreement shall be in good faith without notice full force and effect and there shall not have been any amendment or waiver of any adverse claim, except as described in clause (i) above;of its material terms or conditions. (iiil) The Company shall have delivered duly executed copies of the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral Management Rights Agreements to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;HMTF Funds. (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender The Company shall have reasonably requested; andmade all filings with, given all notices to, and received all approvals from, all Governmental Authorities (including, without limitation, the Federal Communications Commission and state public utility commissions) required in connection with the consummation of the Transactions, unless the failure to make such filings, give such notices or receive such approvals would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the ability of the Company to consummate the Transactions.

Conditions Precedent to Closing. Subject A. Conditions Precedent to Section 3.02, the obligation Obligations of the Lenders hereunder Shareholder ---------------------------------------------------------- The obligations of the Shareholder to consummate the transactions contemplated hereby shall be subject to the satisfaction at or prior to the closing of all of the following conditions precedent that (any or all of which may be waived, in whole or in part, by the Facility Agent shall have received on Shareholder in her discretion): 1. No preliminary or before the Closing Date the followingpermanent injunction or other order issued by a court of competent jurisdiction or by any regulatory authority, each in form and substance reasonably satisfactory nor any statute, rule or regulation enacted or promulgated subsequent to the Facility Agent: (a) each date of the Facility Documents duly executed and delivered by the parties theretothis Agreement, which shall each be in full force and effect; (b) true and complete copies prohibits the consummation of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement;hereby shall be in effect. (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct 2. GLDI shall have performed in all material respects as its obligations under this Agreement required to be performed by it on or prior to the closing. Without limiting the generality of the Closing Date (except immediately preceding sentence, the Amended and Restated Articles of Incorporation of GLDI shall have been amended to increase the capital stock of GLDI so as to permit GLDI to issue the GLDI Shares to the extent such Shareholder. 3. The representations and warranties expressly relate to any earlier date, of GLDI contained in which case such representations and warranties this Agreement shall be true and correct in all material respects at and as of the date of closing as if made at and as of such earlier date)time, (iv) no Default or Event of Default has occurred and is continuing, and (v) except as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and affected by the transactions contemplated therebyhereby. 4. The Shareholder shall have received a certificate, including acting pursuant dated as of the date of closing, of the President of GLDI to the effect that the conditions precedent specified in paragraphs 2 and 3 of this Section IV.A. have been satisfied. B. Conditions Precedent to the Obligations of GLDI ----------------------------------------------- The obligations of GLDI to consummate the transactions contemplated hereby shall be subject to the satisfaction at or prior to the closing of all of the following conditions precedent (any or all of which may be waived, in whole or in part, by GLDI in its discretion): 1. No preliminary or permanent injunction or other order issued by a court of competent jurisdiction or by any regulatory authority, nor any statute, rule or regulation enacted or promulgated subsequent to the date of this Agreement, (iii) that its representations and warranties set forth which prohibits the consummation of the transactions contemplated hereby shall be in the Collateral Management Agreement are true and correct effect. 2. The Shareholder shall have performed in all material respects as her obligations under this Agreement required to be performed by her on or prior to the closing. Without limiting the generality of the Closing Date (except immediately preceding sentence, the Amended and Restated Articles of Incorporation of GLDI shall have been amended to increase the capital stock of GLDI so as to permit GLDI to issue the GLDI Shares to the extent such Shareholder. 3. The representations and warranties expressly relate to any earlier date, of the Shareholder contained in which case such representations and warranties this Agreement shall be true and correct in all material respects at and as of the date of closing as if made at and as of such earlier date)time, (iv) no Default or Event of Default has occurred and is continuing, and (v) except as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted affected by the Borrower or any predecessor in interest (including any transferor);transactions contemplated hereby. (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement 4. GLDI shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) received a certificate of a Responsible Officer of the Borrowercertificate, dated as of the Closing Datedate of closing, of the Shareholder to the effect that, that the conditions precedent specified in the case paragraphs 2 and 3 of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has Section IV.B. have been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andsatisfied.

Conditions Precedent to Closing. Subject to Section 3.02, the obligation (i) Conditions of the Lenders hereunder shall be Investors’ Obligations at the Closing. The obligations of each Investor to consummate the Closing under this Agreement are subject to the conditions precedent that fulfillment, to the Facility Agent shall have received satisfaction of such Investor on or before the Closing Date the following, each in form and substance reasonably satisfactory prior to the Facility AgentClosing, or waiver by such Investor, of the following conditions: (a) each of the Facility Documents duly executed representations and delivered by the parties thereto, which shall each be warranties contained in full force and effect; (b) Section 5 remaining true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as accurate in effect all material respects on the Closing Date; (cb) true the Company having performed and complete copies certified by a Responsible Officer of the Borrower of complied with all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving agreements and obligations contained in this Agreement and the other Facility Documents to which it is a party that are required to be performed or complied with by it on or before the date of Closing; (c) the Company having duly attended to and carried out all corporate procedures that are required under the transactions contemplated therebyapplicable laws of its place of incorporation or establishment to effect its execution, (iii) that its representations delivery and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as performance of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Basic Documents to which it is a party, and the transactions contemplated hereby and thereby, and having provided copies of all resolutions (and all attachments thereto) in accordance with applicable law approving the transactions contemplated hereby; (d) all consents and approvals of, notices to, and filings or registrations with, any Governmental Authority or any other Person required pursuant to any applicable law or regulation of any Governmental Authority having been obtained or made; (e) a certificate there having been since the date of a Responsible Officer this Agreement no material adverse change in the business, operations and financial position of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Group, (f) proper financing statementsthe Company having delivered to the Investors a Closing Certificate, under dated the UCC in all jurisdictions date of the Closing and signed by an authorized officer of the Company, certifying that the Facility Agent deems necessary or desirable conditions set forth in order to perfect the interests in the Collateral contemplated by paragraphs (a) through (f) of this AgreementSection have been satisfied; (g) copies of proper financing statements, if any, necessary to release all security interests the Investors having received a Cayman Islands opinion from Xxxxxx and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower Xxxxxx and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery date of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andClosing.

Conditions Precedent to Closing. Subject to Section 3.02, the (a) The obligation of the Lenders hereunder shall be Purchaser to consummate the transactions contemplated by this Agreement is subject to the conditions precedent that satisfaction (or waiver by the Facility Agent Purchaser) of the following conditions: (i) Without regard to any materiality qualifier contained therein, the representations and warranties pursuant to Sections. 5.1 and 5.2 below shall, in all material respects, be true and accurate on the date of this Agreement and on the Closing Date, and each of the Sellers shall have received performed or complied with all covenants and agreements made in this Agreement or pursuant hereto that are to be performed on or before the Closing Date Date. (ii) No action shall be pending or threatened in writing and no judgment order, stipulation, injunction or decree of any court, administrative body or arbitration tribunal shall have been issued which (i) seeks to enjoin from, restrain or prohibit the following, each in form and substance reasonably satisfactory transfer of the Shares to the Facility Agent: Purchaser, (aii) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the would cause transactions contemplated by this Agreement;Agreement to be rescinded following the consummation or (iii) would have, individually or in the aggregate, a Company Material Adverse Effect. (diii) The Company shall have obtained any and all waivers, permits, notices, consents, approvals or other authorizations to the transaction contemplated in this Agreement as may be required, including but not limited to any regulatory approvals and consents required by any contracts to which the Company is a certificate of a Responsible Officer of party; provided that the Borrower certifying Purchaser acknowledges that the consents set forth on Exhibit 5.1(d) shall not be required prior to Closing. (iv) The Purchaser shall have received (i) the Financial Statements (as to its Constituent Documents, defined below) and (ii) certified charter documents of the Company, certificates as to its the incumbency of officers and the adoption of authorizing resolutions, and certificates of the Company's officers and of the Sellers and such other documents evidencing satisfaction of the conditions specified in this Section 4.3. (v) Each Seller and certain of the employees of the Company designated by the Purchaser in Exhibit 4.4(e) (1) shall have executed an employment agreement (including a non-compete and a non-disclosure agreement) in the appropriate form (i.e., the executive form, the non-executive employee/shareholder form or the non-executive form) as attached hereto as Exhibit 4.4(e)(2). (vi) Based on written resolutions or other action of its board of directors or members approving this Agreement and directors, the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties Company shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying have (i) as to its Constituent Documentsissued the following 13 share certificates: • Share certificate No. 1, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated therebyrepresenting 895 registered shares with a par value of CHF 100.—each, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth issued in the Collateral Management Agreement are true and correct in all material respects as name of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier dateXx. Xxxxx Xxxxxx; • Share certificate No. 2, in which case such representations and warranties shall be true and correct in all material respects as representing 895 registered shares with a par value of such earlier date)CHF 100.—each, (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests issued in the Collateral contemplated by this Agreement; (g) copies name of proper financing statementsXx. Xxxxxxxxxxx Xxxxxxx; • Share certificate No. 3, if anyrepresenting 804 registered shares with a par value of CHF 100.—each, necessary to release all security interests and other rights of any Person issued in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each name of the Secured Parties) Xx. Xxxx Xxxx; • Share certificate No. 4, representing 108 registered shares with a par value of (i) Xxxxxxxx & Xxxxxxxx LLPCHF 100.—each, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, issued in the case name of each item Mr. Bas Bastiaans; • Share certificate No. 5, representing 94 registered shares with a par value of Collateral pledged to the Collateral AgentCHF 100.—each, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest issued in the Collateralname of Xx. Xxxxxxx Xxxxxxxx; • Share certificate No. 6, representing 43 registered shares with a par value of CHF 100.—each, issued in the name of Xx. Xxxxxx Xxxxxx; • Share certificate No. 7, representing 35 registered shares with a par value of CHF 100.—each, issued in the name of Xx. Xxxxx Xxxxxx; • Share certificate No. 8, representing 30 registered shares with a par value of CHF 100.—each, issued in the name of Mr. Xxxxx Xxxxxx; • Share certificate No. 9, representing 13 registered shares with a par value of CHF 100.—each, issued in the name of Xx. Xxxx Xxxxx; • Share certificate No. 10, representing 18 registered shares with a par value of CHF 100.—each, issued in the name of Xx. Xxxxxx Xxxxxxxxx; • Share certificate No. 11, representing 10 registered shares with a par value of CHF 100.—each, issued in the name of Xx. Xxxxxx Xxxxxxxxxx; • Share certificate No. 12, representing 10 registered shares with a par value of CHF 100.—each, issued in the name of Xxx. Xxxxx Xxxxxx-Möri; • Share certificate No. 13, representing 45 registered shares with a par value of CHF 100.—each, issued in the name of bmd wireless AG; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and

Conditions Precedent to Closing. Subject to Section 3.02, the obligation of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate In addition to any earlier date, conditions provided in which case such representations and warranties shall be true and correct in all material respects as other provisions of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations Purchaser’s obligation to purchase the Property is and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), conditioned on the following (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request;“Closing Condition”): (i) evidence satisfactory That at no time prior to the Facility Agent that all Closing shall any of the Covered Accounts are following have been done by or against or with respect to Seller or an affiliate of Seller and, as a result thereof, Seller cannot perform its obligations under this Agreement (collectively, an “Insolvency Event”): (i) the commencement of a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any other applicable federal or state bankruptcy law or other similar law; (ii) the appointment of a trustee or receiver of any property interest; or (iii) an assignment for the benefit of creditors. (ii) On the Closing Date, there shall not be any uncured Unpermitted Exception or any violation of law, ordinance, order or requirement relating to the Property which is imposed in existence; writing and delivered to Seller by any governmental authority relating to the Account Control Agreement Property, which is not remedied by Seller. (iii) If the transaction contemplated hereby shall require authorization or approval of any governmental agency having jurisdiction, all such authorizations and approvals shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary obtained and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses effect on and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, . If such authorizations and approvals shall not have been obtained on or prior to the effect thatlast day for Closing hereinabove provided, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date may be deferred, at the election of either party, for an additional period of time, not to exceed 30 days, as shall be necessary to obtain any authorizations or approvals not then obtained. (iv) There shall be no more than five (5) Tenant Claims, or any number of Tenant Claims in excess of $25,000 in the aggregate, outstanding at Closing that have not been cured by Seller. (v) There shall be no active remediation activities at the Property in an amount more than $25,000 for any single occurrence with respect to mold, water damage, fungi, bacteria or other biological growth or biological growth factors at the Property. (vi) Occupancy of the apartment units within the Improvements (model units shall be considered unoccupied and immediately prior to units occupied by employees shall be considered occupied for purposes of the delivery thereof on occupancy calculation) shall be no less than 85% as of the Closing Date:. (ivii) Schedule B-II exception numbers 15-18 in the Borrower is Title Commitment shall have been released of record on or before the owner of such Collateral free and clear of any liensClosing Date. (viii) Seller shall, claims or encumbrances of any nature whatsoever except for (A) those which are being released on prior to the Closing Date, (B1) those granted have caused the filtration units and filter inserts to be inspected by a licensed third party inspector and an inspection report issued by such inspector indicating that the filtration units and filter inserts referred to in the BMP Maintenance Covenant are in operating condition and not disclosing any corrective actions that must be undertaken pursuant to the protocol set forth in the BMP Maintenance Covenant, unless such corrective actions, if any, have been satisfied prior to the Closing Date, and (2) provide Purchaser with a copy of such inspection report and all maintenance records in connection with the filtration units and filter inserts, pursuant to the BMP Maintenance Covenant. (b) Seller’s and Purchaser’s obligation to close under this Agreement are conditioned upon the following (“Additional Closing Conditions”): (i) The CRA shall have approved for execution, and executed and delivered to the Account Control Escrow Agent for Closing, a Partial Assignment of Owner Participation Agreement and Consent to Assignment (C“OPA Assignment”) Permitted Liens;of the OPA, in substantially the same form as the form attached hereto as Exhibit U, which is hereby approved by Seller and Purchaser, subject to modification as required by the CRA. Seller and Purchaser covenant and agree to cooperate in good faith to diligently resolve any changes to the OPA Assignment required by the CRA, and Seller further covenants to use best efforts to obtain the approval and execution of the OPA Assignment, in the form attached hereto (as required to be modified by the CRA), by the CRA prior to the Closing Date; and (ii) The MTA shall have approved for execution, and executed and delivered to the Borrower has acquired its ownership Escrow Agent for Closing, an assignment and assumption of the Greenways License Agreement (“MTA Licensee Agreement”) between the Seller and Purchaser substantially in such Collateral in good faith without notice the form of any adverse claimExhibit Y hereto (the “MTA Assignment”), except which is substantially the same form as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Assignment and Assumption of the Greenway License Agreement and MTA Consent dated July 1, 2008 between Seller and CRA, a copy of which Seller has provided to Purchaser, and Seller further covenants to use best efforts to obtain the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral approval and execution of the Account Control AgreementMTA Assignment by the MTA prior to the Closing Date. (c) If there is a failure of a Closing Condition, the Collateral Agent has a first priority Purchaser can either (subject to clause i) waive such failure and close this transaction, or (ii) notify Seller in writing that Purchaser has elected to terminate this Agreement and obtain a return of the definition Xxxxxxx Money Deposit (which notice shall specify the details of Permitted Lienssuch failure); provided, however, that a termination by Purchaser for a failure of a Closing Condition shall not become effective until the time and date scheduled for Closing, and then only if the Closing Condition shall not have been satisfied by such time and date. In event of termination for a failure of a Closing Condition, Purchaser shall receive a full refund of the Xxxxxxx Money Deposit, and except as may be specifically set forth elsewhere in this Agreement, neither party shall have any further liability hereunder; provided, however, an Insolvency Event shall not be deemed a Seller default under any provision of this Agreement, including without limitation, Paragraph 18(b)(xiii) perfected security interest in the Collateral;hereof. (md) such Notwithstanding any provision hereof to the contrary, if despite the cooperation and good faith efforts of the Seller and Purchaser to satisfy the Additional Closing Conditions, the same have not been satisfied as of the October 15, 2009, then either party may terminate this Agreement by written notice to the other opinionsparty on or before the October 16, instruments2009, certificates whereupon the Xxxxxxx Money Deposit shall be returned to Purchaser and documents from the Borrower as the Agents or any Lender neither party shall have reasonably requested; andany further obligations under this Agreement. (e) A failure of any Closing Condition or Additional Closing Condition under this Paragraph 20 shall not limit or supersede any remedy to which either party is otherwise entitled under this Agreement, including (without limitation) any remedy for a default or breach.

Conditions Precedent to Closing. Subject (a) The obligations of ANBT and the SELLERS under this Agreement shall be and are subject to Section 3.02fulfillment, prior to or at the obligation Closing, of each of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agentfollowing conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement That EXXX'x and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its MANAGEMENT's representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties contained herein shall be true and correct in at the time of Closing as if such representations and warranties were made at such time, and MANAGEMENT will deliver an executed certification confirming the foregoing; (ii) That EXXX and MANAGEMENT shall have performed or complied with all material respects as agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of such earlier date)the Closing; (iii) That EXXX'x directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly ANBT led and held, shall have properly approved all of the matters required to be approved by EXXX'x directors and shareholders, respectively; (iv) no Default or Event That EXXX'x Board of Default has occurred Directors, by proper and is continuingsufficient vote, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management shall have approved this Agreement and the transactions contemplated therebyhereby; and (b) The obligations of EXXX and MANAGEMENT under this Agreement shall be and are subject to fulfillment, including acting pursuant prior to this Agreement, or at the Closing of each of the following conditions: (iiii) that its That ANBT 's and SELLERS' representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties contained herein shall be true and correct in all material respects at the time of Closing as of if such earlier date), (iv) no Default or Event of Default has occurred representations and is continuing, warranties were made at such time and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower ANBT and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to ANBT PRINCIPALS shall deliver an executed certification confirming the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liensforegoing; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claimThat ANBT and ANBT PRINCIPALS shall have performed or complied with all agreements, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to terms and conditions required by this Agreement and to be performed or complied with by them prior to or at the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agenttime of Closing; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations Regarding the Initial Closing. The obligations of the Lenders hereunder Company with respect to Purchaser required to be performed on the Initial Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver in writing, each in form and substance reasonably satisfactory at or prior to the Facility AgentInitial Closing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of Purchaser contained in the Facility Documents to this Agreement which it is a party are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all material respects as of and the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in of Purchaser which case such representations and warranties are not so qualified shall be true and correct in all material respects respect, in each case on and as of such earlier date)the date hereof and on and as of the Initial Closing Date, as if made on and as of the Initial Closing Date. (ivb) no Default or Event of Default has occurred Purchaser shall have performed in all material respects all obligations and is continuingagreements, and (v) as complied in all material respects with all covenants, contained in this Agreement to be performed and complied with by Purchaser at or prior to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Initial Closing Date. (ec) a certificate No provision of a Responsible Officer any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Collateral Manager certifying Transactions. (id) as The Company shall have received the Initial Purchase Price payable in respect of the Initial Shares concurrently with Purchaser's receipt of certificates representing the Initial Shares purchased by Purchaser. SECTION 7.2. Conditions to its Constituent DocumentsPurchaser's Obligations Regarding the Initial Closing. The obligations of Purchaser required to be performed on the Initial Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to the Initial Closing, of the following conditions: (iia) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its The representations and warranties set forth of the Company contained in the Collateral Management this Agreement which are qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all material respects as of and the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in of the Company which case such representations and warranties are not so qualified shall be true and correct in all material respects respects, in each case on and as of such earlier date)the date hereof and on and as of the Initial Closing Date, as if made on and as of the Initial Closing Date. (ivb) no Default The Company shall have performed in all material respects all of its obligations, agreements and covenants contained in this Agreement to be performed and complied with at or Event prior to the Initial Closing Date. (c) No provision of Default any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has occurred the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (d) All material governmental (domestic and is continuingforeign) and third party approvals and/or consents in connection with the Initial Issuance and the other Transactions being obtained and remaining in effect, and all applicable waiting periods having expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon, the consummation of the Transactions. (ve) as to The Company shall have filed the incumbency Certificate of Designation with the Secretary of State of the State of Delaware and specimen signature the Certificate of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Designation shall have been accepted for filing. (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement The Company shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) Purchaser a certificate of a Responsible Officer of the Borrowerexecuted by it or on its behalf by duly authorized representative, dated as of the Initial Closing Date, to the effect thatthat each of the conditions specified in paragraph (a) through (e) and (j) of this Section 7.2 has been satisfied. (g) The Company shall have executed and delivered the Registration Rights Agreement. (h) Purchaser shall have received an opinion of counsel to the Company, dated the Initial Closing Date, and addressed to Purchaser, substantially to the effect set forth in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:form attached hereto as Exhibit C. (i) Purchaser shall have received certificates representing the Borrower is Initial Shares purchased by Purchaser concurrently with the owner Company's receipt of the Initial Purchase Price payable in respect of such Collateral free Initial Shares. (j) Since September 30, 2000 there shall not have occurred any event, circumstance, condition, fact, effect or other matter which has had or could reasonably be expected to have a material adverse effect (x) on the condition (financial or otherwise), business, properties, operations, results of operations or prospects of the Company, HQ Global and clear the Subsidiaries, taken as a whole or (y) on the ability of the Company to perform on a timely basis any liensmaterial obligation under this Agreement or to consummate the Initial Issuance contemplated hereby. (k) All purchases of Purchaser shall be in compliance with the Bank Holding Company Act of 1956, claims and all other applicable foreign and domestic banking statutes, and all regulations (including, without limitation, all regulations of the Federal Reserve Board) promulgated thereunder, in each case as amended through the closing. (l) Purchaser (or encumbrances its designee) shall have received from the Company a placement fee equal to $750,000 in immediately available funds. SECTION 7.3. Conditions to Purchaser's Obligations Regarding Additional Closings. Obligations of any nature whatsoever except for Purchaser required to be performed on an Additional Closing Date shall be subject to the satisfaction or waiver in writing, at or prior to such Additional Closing, of the following conditions: (Aa) those The representations and warranties of the Company contained in this Agreement which are being released qualified by any "materiality", "material adverse effect" or any similar qualifier shall be true and correct in all respects and the representations and warranties of the Company which are not so qualified shall be true and correct in all material respects, in each case on and as of the date hereof and on and as of such Additional Closing Date, as if made on and as of such Additional Closing Date. (Bb) those granted pursuant to The Company shall have performed in all material respects all of its obligations, agreements and covenants contained in this Agreement to be performed and complied with at or prior to such Additional Closing Date. (c) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (d) All material governmental (domestic and foreign) and third party approvals and/or consents in connection with such Additional Issuance and the Account Control Agreement other Transactions being obtained and remaining in effect, and all applicable waiting periods having expired without any action being taken by any competent authority which restrains, prevents or imposes materially adverse conditions upon, the consummation of the Transactions. (e) The Company shall have delivered to Purchaser a certificate executed by it or on its behalf by duly authorized representative, dated such Additional Closing Date, to the effect that each of the conditions specified in paragraph (a) through (d) and (Ch) Permitted Liens;of this Section 7.3 has been satisfied. (iif) Purchaser shall have received an opinion of counsel to the Borrower Company, dated such Additional Closing Date, and addressed to Purchaser, substantially to the effect set forth in the form attached hereto as Exhibit C. (g) Purchaser shall have received certificates representing the Additional Shares purchased by Purchaser concurrently with the Company's receipt of the Additional Purchase Price payable in respect of such Additional Shares. (h) Since the immediately preceding Closing Date there shall not have occurred any event, circumstance, condition, fact, effect or other matter which has acquired its ownership in such Collateral in good faith without notice had or could reasonably be expected to have a material adverse effect (x) on the condition (financial or otherwise), business, properties, operations, results of operations or prospects of the Company, HQ Global and the Subsidiaries, taken as a whole or (y) on the ability of the Company to perform on a timely basis any adverse claim, except as described in clause material obligation under this Agreement or to consummate the Additional Issuance contemplated hereby. (i) above;Neither a Triggering Event nor a Mandatory Redemption Event shall have occurred. (iiij) the Borrower has This Agreement shall not assigned, pledged or otherwise encumbered have been terminated in accordance with its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andterms.

Conditions Precedent to Closing. Subject (a) The obligations of IOI and the SELLERS under this Agreement shall be and are subject to Section 3.02fulfillment, prior to or at the obligation Closing, of each of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agentfollowing conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement That APEC's and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its MANAGEMENT's representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties contained herein shall be true and correct in at the time of Closing as if such representations and warranties were made at such time, and MANAGEMENT will deliver an executed certification confirming the foregoing: (ii) That APEC and MANAGEMENT shall have performed or complied with all material respects as agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the time of such earlier date)Closing; (iii) That APEC's directors and shareholders, by proper and sufficient vote taken either by consent or at a meeting duly and properly called and held, shall have properly approved all of the matters required to be approved by APEC's directors and shareholders, respectively; (iv) no Default or Event That APEC's Board of Default has occurred Directors, by proper and is continuingsufficient vote, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management shall have approved this Agreement and the transactions contemplated therebyhereby; approved the change of APEC's corporate name to a name selected by IOI; approved the resignation of all of APEC's current directors and the election of up to three designees of IOI to serve as directors in place of APEC's current directors; and will have approved such other changes as are consistent with this Agreement and approved by IOI and APEC; and (b) The obligation of APEC and MANAGEMENT under this Agreement shall be and are subject to fulfillment, including acting pursuant prior to this Agreement, or at the Closing of each of the following conditions : (iiii) that its That IOI's and SELLERS' representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties contained herein shall be true and correct in all material respects at the time of Closing as of if such earlier date), (iv) no Default or Event of Default has occurred representations and is continuing, warranties were made at such time and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower IOI and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to IOI PRINCIPALS shall deliver an executed certification confirming the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liensforegoing; (ii) That IOI and IOI PRINCIPALS shall have performed or complied with all agreements, terms and conditions required by this Agreement to be performed or complied with by them prior to or at the Borrower has acquired its ownership in such Collateral in good faith without notice time of any adverse claim, except as described in clause (i) above;Closing; and (iii) that IOI's officers will have signed non-compete clauses in the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;form attached hereto as Exhibit J. (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower That IOI's officers shall provide any existing employment agreements which are attached hereto as the Agents or any Lender shall have reasonably requested; andExhibit H.

Conditions Precedent to Closing. Subject (a) Purchaser's obligation under this Agreement to Section 3.02, purchase the obligation of the Lenders hereunder shall be Premises is subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) fulfillment of each of the Facility Documents duly executed and delivered by following conditions, subject, however, to the parties thereto, which shall each be in full force and effect;provisions of Section 10(c): (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth in the Facility Documents to which it is a party are true of Seller contained herein shall be true, accurate and correct in all material respects as of the Closing Date (except to the extent such they relate only to an earlier date (subject to the provisions of Section 8(a)); (ii) Seller shall be ready, willing and able to deliver title to the Premises in accordance with the terms and conditions of this Agreement; (iii) Seller shall have satisfied the condition set forth in Section 26 of this Agreement; (iv) Seller shall have delivered all the documents and other items required pursuant to Section 11, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the Seller at or prior to the Closing; and (v) Seller shall have satisfied the condition set forth in Section 26 of this Agreement. (b) Seller's obligation under this Agreement to sell the Premises to Purchaser is subject to the fulfillment of each of the following conditions, subject, however to the provisions of Section 10(c): (i) the representations and warranties expressly relate to any earlier date, in which case such representations and warranties of Purchaser contained herein shall be true and correct in all material respects as of such earlier date)true, (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true accurate and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a partyDate; (fii) proper financing statementsPurchaser shall have delivered the funds required hereunder and all the documents to be executed by Purchaser set forth in Section 12 and shall have performed all other covenants, under undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by Purchaser at or prior to the UCC in Closing; (iii) all jurisdictions consents and approvals of governmental authorities and parties to agreements to which Purchaser is a party or by which Purchaser's assets are bound that are required with respect to the Facility Agent deems necessary or desirable in order to perfect consummation of the interests in the Collateral transactions contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed obtained and copies thereof shall have been delivered by to Seller at or prior to the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect;Closing; and (jiv) evidence satisfactory on or prior to Closing Date, (A) Purchaser shall not have applied for or consented to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses appointment of a receiver, trustee or liquidator for itself or any of its assets unless the Collateral Agent same shall have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of discharged prior to the Closing Date, to the effect thatand no such receiver, in the case of each item of Collateral pledged to the Collateral Agentliquidator or trustee shall have otherwise been appointed, on the Closing Date and immediately unless same shall have been discharged prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant Purchaser shall not have admitted in writing an inability to this Agreement and the Account Control Agreement and pay its debts as they mature, (C) Permitted Liens;Purchaser shall not have made a general assignment for the benefit of creditors, (D) Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in any proceedings under any such law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been dismissed, canceled or terminated prior to the Closing Date. (c) In the event that any condition contained in Section 10(a) or (b) is not satisfied, the party entitled to the satisfaction of such condition as a condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) terminate this Agreement. In the Borrower has acquired its ownership in event such Collateral in good faith without notice of party elects to terminate this Agreement, this Agreement shall be terminated and neither party shall have any adverse claimfurther rights, obligations or liabilities hereunder, except as described otherwise expressly provided in clause Sections 4(a)(i), 14, 15, 18, 24 and 25(e), and except that Purchaser shall be entitled to a return of the Downpayment (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its together with all interest in such Collateral (oraccrued thereon, if any). Nothing contained in this Section 10(c) shall be construed so as to (x) bestow any right of termination upon a party for the failure of a condition to be satisfied unless such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral party is expressly entitled to the Collateral Agent; and satisfaction of such condition as provided in Section 10(a) or (vb) upon grant by or (y) reduce or diminish the Borrower, Delivery rights of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andparties hereto under Section 17.

Conditions Precedent to Closing. Subject The obligations of each Party to Section 3.02, close the obligation of the Lenders hereunder shall be transactions contemplated hereby is subject to the fulfillment of the following conditions, or waiver thereof by the party to whom the obligation is due, at or prior to Closing, and the Parties will use commercially reasonable efforts to cause such conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agentbe fulfilled: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth in the Facility Documents to which it is a party made by each Party herein are true and correct in all material respects as of the Closing Date date hereof (except to the extent such for representations and warranties expressly relate to any earlier date, in that speak as of a certain date which case such representations and warranties shall be true and correct in all material respects as of such earlier date), . (ivb) no Default Each Party shall have complied with all of its covenants required to be performed at or Event of Default has occurred and is continuing, and (v) as prior to the incumbency Closing, including the execution and specimen signature delivery of each the documents described in Section 1.6. (c) Seller shall have obtained all necessary approvals and consents of its Responsible Officers authorized shareholders with respect to execute the Facility Documents transactions contemplated hereby. (d) Cheek shall have executed and delivered to which it is a party;Purchaser an employment agreement in form acceptable to Purchaser. (e) a certificate of a Responsible Officer of Seller and Purchaser shall have executed and delivered the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Escrow Agreement, (iii) that its representations in form reasonably acceptable to Purchaser and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Seller. (f) proper financing statementsPurchaser shall be satisfied in its reasonable discretion, under with the UCC in all jurisdictions results of any environmental investigation and title search that it performs prior to Closing with respect to the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this AgreementReal Property; (g) copies of proper financing statements, if any, necessary to release all security interests and No action or proceeding by or before any court or other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement governmental body shall have been executed and delivered instituted or threatened by any governmental body or person whatsoever which shall seek to restrain, prohibit or invalidate the Borrower, transactions contemplated by this Agreement or which might affect the Collateral Agent and right of Purchaser to own the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory Assets or to own or operate the Business after the Closing. Notwithstanding anything to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid contrary in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (obligations of Purchaser to close the transactions contemplated hereby are also subject to clause (ii) of the definition of Permitted Liens) perfected security interest payoff amounts reflected in the Collateral; Payoff Letters being less than Ten Million Nine Hundred Thousand Dollars (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and$10,900,000).

Conditions Precedent to Closing. Subject to Section 3.02, the The obligation of each Investor to acquire the Lenders hereunder shall be Investor Shares at the Closing is subject to the conditions precedent that the Facility Agent shall have received fulfillment to such Investor’s satisfaction, on or before prior to the Closing Date Date, of each of the followingfollowing conditions, each in form and substance reasonably satisfactory any of which may be waived by such Investor (as to the Facility Agent:itself only): (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth in of the Facility Documents to which it is a party are Company contained herein shall be true and correct in all material respects as of the Closing Date (except to the extent such for those representations and warranties expressly relate which are qualified as to any earlier datemateriality, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (ivrespects) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations date when made and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, as though made on and as of such date, except for such representations and warranties that speak as of a specific date. (b) The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the effect thatClosing. (c) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission, and the Investor shall have received the Prospectus in accordance with the case federal securities laws. (d) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of each item competent jurisdiction that prohibits the consummation of Collateral pledged any of the transactions contemplated by this Agreement. (e) Since the date of execution of this Agreement, no event or series of events shall have occurred that has had or would reasonably be expected to the Collateral Agenthave a Material Adverse Effect. (f) The Investor Shares have been duly listed, subject to official notice of issuance, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andNew York Stock Exchange.

Conditions Precedent to Closing. Subject to Section 3.02, The effectiveness of this Agreement (which shall occur on the obligation of the Lenders hereunder shall be Closing Date) is subject to the satisfaction of the following conditions precedent that as of the Facility Agent Closing Date on or before March 1, 2012 (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate): (a) each Party shall have received, in a form satisfactory to it, opinions from counsel to the other Party covering due authorization, execution and delivery of the Capital Protection Documents by the other Party, in each case in form and substance reasonably satisfactory to such Party; (b) each Party shall have received, in a form satisfactory to it, copies of all Capital Protection Documents duly executed and delivered by the other Party and, where applicable, the Guarantor; (c) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the Custody Agreement duly executed by the Trust and the Custodian; (d) the Capital Protection Provider shall have received an officer’s certificate of the Fund, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) the incumbency and signature of the officers of the Fund executing any Capital Protection Document, or before having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents and each Prospectus of the Fund and the Organizational Documents of the Trust, certified as of the Closing Date as complete copies thereof by the followingSecretary or an Assistant Secretary of the Fund or the Trust, as applicable, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Trust and the Fund (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Fund; (e) the Capital Protection Provider shall have received an officer’s certificate of the Adviser, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Adviser and the Secretary or any Assistant Secretary on behalf of the Adviser and which certificate shall include (i) the incumbency and signature of the officers of the Adviser executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents of the Adviser, certified as of the Closing Date as complete copies thereof by the Secretary or an Assistant Secretary of the Adviser, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of the Adviser (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Adviser; (f) the Fund shall have received a certificate dated as of the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by the Secretary or an Assistant Secretary of the Capital Protection Provider on behalf of the Capital Protection Provider, and which certificate shall include the incumbency and signature of the employees of the Capital Protection Provider authorized to execute on behalf of the Capital Protection Provider any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement; (g) the Fund shall have received, in a form satisfactory to it, a certificate, dated as of the Closing Date, substantially in the form of Exhibit D, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by a permanent representative of the Guarantor on behalf of the Guarantor, and which certificate shall include the incumbency and signature of the employees of the Guarantor authorized to execute on behalf of the Guarantor any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement; (h) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the resolutions, in form and substance reasonably satisfactory to the Facility Agent: (a) each Capital Protection Provider, of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; Board of Directors (bor analogous body) true and complete copies of the Constituent Documents Fund authorizing the execution, delivery and performance of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Capital Protection Documents to which it is a party party, certified on behalf of the Fund by the Secretary or an Assistant Secretary of the Fund, as of the Closing Date, which certification shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), shall be in form and substance reasonably satisfactory to the transactions contemplated therebyCapital Protection Provider and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded; (iiii) the Capital Protection Provider shall have received, in a form satisfactory to it, a certification that its shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), stating on behalf of the Fund that as of the Closing Date: (i) The representations and warranties set forth contained in the Facility Documents to which it is a party Section 4.01 are true and correct in all material respects on and as of the Closing Date, as though made on and as of the Closing Date; (ii) No Fund Event or Knock-Out Event exists as of the Closing Date; (iii) No licenses, authorizations, consents or approvals as referred to in Section 4.01(n) are required as of the Closing Date or, in the case that such documents are required, that they are required and attaching copies thereof; and (except iv) The Aggregate Protected Amount as of the Closing Date does not exceed the Maximum Settlement Amount; (j) the Fund shall have arranged with the Custodian for the Capital Protection Provider and the Agent to directly receive the extent such applicable reports and information contained in Schedule II; (k) the representations and warranties expressly relate to any earlier datemade by the Fund and Capital Protection Provider, respectively, contained in which case such representations and warranties ARTICLE 4 shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effectDate; (l) each Party shall have received, in a certificate of a Responsible Officer form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters reasonably requested by such Party evidencing or confirming the accuracy of the Borrower, dated as representations and warranties made by the other parties hereunder or the authority of such other parties to enter into this Agreement or the Closing Date, other Capital Protection Document to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:which they are party; and (i) the Borrower is registration statement of the owner of such Collateral free Fund shall have been filed with the Commission and clear of any liensbecome effective, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice investment policies and objectives of any adverse claim, except the Fund as described in clause (i) above; the Prospectus contained in such registration statement and the description of the Capital Protection Provider and the Capital Protection Agreement in such Prospectus shall, in each case, be reasonably satisfactory to the Agent, and (iii) the Borrower has not assigned, pledged or otherwise encumbered Agent shall have determined in its interest in reasonable discretion that any modifications to such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant Prospectus from the draft most recently filed with the Commission prior to the date of this Agreement do not materially change the rights of the Capital Protection Provider under, or the terms of, this Agreement. Upon receipt the satisfaction of all documentary conditions precedent and its reasonable satisfaction that all non-documentary conditions precedent have been satisfied on or before March 1, 2012, each of the Fund and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest Capital Protection Provider will confirm in and assign and pledge such Collateral writing to the Collateral Agentother that the conditions precedent have been satisfied, and upon such written confirmation thereof from the Fund and the Capital Protection Provider on or before March 1, 2012, the Closing Date shall occur; and (v) upon grant by provided, that such confirmation shall not constitute a waiver of any non-documentary condition that was not satisfied, and the Borrower, Delivery non-defaulting Party shall be entitled to exercise any rights it may have hereunder or under applicable Law arising out of the Collateral and execution failure of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andcondition.

Conditions Precedent to Closing. Subject 5.1 Condition Precedent to Section 3.02, the obligation Obligations of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent:Parties (a) each It shall be condition precedent to the obligations of the Facility Documents duly executed and delivered Parties to consummate the transactions contemplated by the parties thereto, which shall each be in full force and effect;this Agreement that: (bi) true and complete copies of the Constituent Documents of the Borrowerno Government Agency shall have enacted, the Fundissued, and the Collateral Manager as promulgated, enforced or entered any law, rule, regulation, order, decree or injunction that is in effect on the Closing Date;Date and has the effect of making the joint venture establishing EAP illegal or otherwise prohibiting consummation of the transactions contemplated hereby; and (cii) true the shareholders of Gondwana have approved GAP's participation in EAP on or before the End Date. (b) It shall be condition precedent to the obligations of EAP and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements exxxxxx.xxx to be filed pursuant to clause (g) below), if any, required in connection with consummate the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer Agreement that each of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth of GAP contained in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred when made and is continuing, on and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date as if made on and as of such date (except to the extent such other than representations and warranties expressly relate to any earlier that address matters only as of a certain date, in which case shall be true and correct as of such certain date), except as contemplated or permitted by this Agreement, and exxxxxx.xxx shall have received a certificate executed by a director and a company secretary of GAP to such effect; and (c) It shall be condition precedent to the obligations of EAP and GAP to consummate the transactions contemplated by this Agreement that each of the representations and warranties of exxxxxx.xxx contained in this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date as if made on and as of such date (other than representations and warranties that address matters only as of a certain date, which shall be true and correct as of such certain date), except as contemplated or permitted by this Agreement, and GAP shall have received a certificate of the President and Chief Financial Officer of exxxxxx.xxx to such effect. 5.2 Non-fulfilment of Conditions If (a) any of the condition precedent in Section 5.1(a)(ii) is not fulfilled (or has not been waived under Section 5.3) on or before the End Date, or (b) the Loan is not advanced to EAP for whatever reason; or (c) the effect that, in portion of the case of each item of Collateral pledged to the Collateral Agent, License Fee payable on the Closing Date and immediately prior to the delivery thereof is not paid on or before 5pm (Perth time) on the Closing Date: Date for whatever reason, then this Agreement, other than Articles 1 (i) Definitions and Interpretation), 3 (Confidentiality), 5 (Conditions Precedent), 12 (Representations and Warranties), 14.3 - 14.17 (Miscellaneous Provisions), automatically terminates on the Borrower is the owner of such Collateral free and clear of any liens, claims End Date or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing DateDate (as applicable). For the avoidance of doubt, (B) those granted if this Agreement is terminated pursuant to this Section 5.2, no person shall have any liability to any other person arising out of or in connection with this Agreement and or the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claimLoan Agreement, except as described in clause (i) above; (iii) the Borrower has not assignedaccordance with Sections 1, pledged or otherwise encumbered its interest in such Collateral (or3, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement 12 and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and14.3 - 14.17.

Conditions Precedent to Closing. Subject 9.1 Purchaser’s obligation to Section 3.02, the obligation of the Lenders hereunder close under this Purchase Contract shall be subject to and conditioned upon the fulfillment in all material respects of each and all of the following conditions precedent that precedent: 9.1.1 All of the Facility Agent documents required to be delivered by Seller to Purchaser at the Closing pursuant to the terms and conditions hereof shall have received on or before the Closing Date the following, each been delivered and shall be in form and substance reasonably satisfactory to the Facility Agent: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement;Purchase Contract. (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its 9.1.2 Seller’s representations and warranties set forth in the Facility Documents to which it is a party are this Purchase Contract shall have been true and correct in all material respects as of the Closing Date (except to the extent such representations when made, and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects on the Closing Date and as of the Effective Date as though such representations and warranties were made at and as of such earlier date)date and time. 9.1.3 Seller shall have complied with, (iv) no Default fulfilled and performed, in each case in all material respects, each of the covenants, terms and conditions to be complied with, fulfilled or Event of Default has occurred and is continuingperformed by Seller hereunder, and (v) as subject to the incumbency cure rights in Article 12. 9.1.4 On or before March 6, 2014, the Seller and specimen signature of each of its Responsible Officers authorized Purchaser shall agree to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer terms of the Collateral Manager certifying (i) as to its Constituent DocumentsAccess, (ii) as to its resolutions approving the Collateral Management Amenity and Sanitary Sewer Easement Agreement and Cross Easement Agreement. 9.1.5 There shall not be pending or, to the knowledge of either Purchaser or Seller, any litigation or threatened litigation which, if determined adversely, would restrain the consummation of any of the transactions contemplated therebyby this Purchase Contract or declare illegal, including acting pursuant invalid or nonbinding any of the covenants or obligations of the Purchaser. 9.1.6 All parties to the Phase 2 Contract (other than Purchaser) shall have executed the Phase 2 Contract and such parties shall not be in default of any of their obligations in the Phase 2 Contract, subject to any cure period provided thereunder. 9.1.7 The Title Company shall commit to issue a Title Policy to Purchaser, subject only to the Permitted Exceptions with the following endorsements: a non-imputation endorsement and ALTA 3.1-06, 8.2, 9.2-06, 17-06, 17.2, 18.1-06, 19-06, 22, 25-06, 26-06 if Buyer obtains a PZR (or similar type) report and 28.1-06 endorsement. 9.2 Without limiting any of the rights of Seller elsewhere provided for in this AgreementPurchase Contract, (iii) that its Seller’s obligation to close with respect to conveyance of the Property under this Purchase Contract shall be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent: 9.2.1 Purchaser’s representations and warranties set forth in the Collateral Management Agreement are this Purchase Contract shall have been true and correct in all material respects as of the Closing Date (except to the extent such representations when made, and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately as of the Effective Date as though such representations and warranties were made at and as of such date and time. 9.2.2 Purchaser shall have complied with, fulfilled and performed, in each case in all material respects, each of the covenants, terms and conditions to be complied with, fulfilled or performed by Purchaser hereunder, subject to the cure rights in Article 12. 9.2.3 Purchaser shall have executed the Phase 2 Contract and Purchaser shall not be in default of any obligations contained in the Phase 2 Contract subject to any cure period provided thereunder. 9.2.4 On or before March 6, 2014, the Seller and Purchaser shall agree to the terms of the Access, Amenity and Sanitary Sewer Easement Agreement and Cross Easement Agreement. 9.3 If any conditions set forth in Section 9.1 are not satisfied or waived by Purchaser or the conditions in Section 9.2 are not satisfied or waived by Seller, the Purchaser (as to the condition in Section 9.1) or Seller (as to the conditions in Section 9.2) shall have the right to elect the remedy set forth in Article 12, if such, failure of condition is also an event of default and if such condition is not also an event of default, such party shall have the right to terminate this Agreement upon written notice to the other party prior to Closing, whereupon the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant Deposit shall be returned to this Agreement Purchaser and the Account Control Agreement and (C) Permitted Liens; (ii) parties released of all further obligations each to the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claimother, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery Surviving Obligations which survive termination of the Collateral and execution of the Account Control this Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and.

Conditions Precedent to Closing. Subject to Section 3.02The following conditions (collectively, the “Closing Conditions”) shall exist at the time of Closing hereunder, and the obligation of Buyer to purchase the Lenders hereunder Property pursuant to this Amended and Restated Contract shall be expressly conditioned upon and subject to the satisfaction (or written waiver by Buyer) of each of such conditions with respect to the entire Property, and Seller, as applicable: (1) All written notices of violations of governmental orders or requirements noted or issued by any public authority having jurisdiction, and any action in any court against or affecting the Property shall have been complied with by Seller and the Property shall be free and clear thereof, and the Property shall not be in violation of any governmental laws, ordinances, rules or regulations, except for any of the foregoing matters caused by Buyer or its agents, employees, contractors or subcontractors. The nature, extent, methods and materials for any corrective work and the parties performing such work shall be subject to Buyer’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed. (2) Title to the entire Property shall be in the condition required pursuant to Section 7(b) below. (3) The Property shall be free of all tenants and occupants other than the Existing Tenant, and no tenant or occupant, other than the Existing Tenant, shall have any right to lease all or any portion of the Property. No tenant or occupant of the Property, expressly including the Existing Tenant, shall have any right or option to purchase all or any portion of the Property. There shall have been no uncured default, and no event shall have occurred or failed to occur that, with the passage of time, or the giving of notice, or both, would constitute a default on the part of the landlord under the Existing Lease or any leases entered into by Seller after the Effective Date in conformity with the terms of this Amended and Restated Contract. The Existing Tenant or occupant shall have waived in writing the Existing Tenant Purchase Option and any and all rights or options to purchase or lease all or any portion of the Property, and the Existing Tenant shall have executed and delivered an agreement, in form and substance satisfactory to Buyer, to terminate the Existing Lease under terms and conditions acceptable to Buyer in its sole discretion (the “Existing Tenant Lease Termination Agreement”). Seller acknowledges that Buyer intends to enter into negotiations with the Existing Tenant to obtain payment from the Existing Tenant in consideration for Buyer’s agreement to terminate the Existing Lease prior to the expiration of the term thereof. Seller shall have no right whatsoever to receive and Seller shall have no interest in any portion of any payment that the Existing Tenant may agree to pay to Buyer for or in connection with Buyer’s agreement to terminate the Existing Lease or otherwise. (4) Neither the whole nor any portion of the Property shall have been condemned or otherwise taken by any public authority in the exercise of its power of eminent domain or by private purchase in lieu thereof (a “Taking”), nor shall any such Taking be threatened. If any such Taking is “material”, in Buyer’s sole and absolute opinion, Buyer may (1) terminate this Amended and Restated Contract in which event the Deposit, plus all accrued interest thereon, shall be returned to Buyer and the parties shall be relieved from all further liability or obligation under this Amended and Restated Contract (except as otherwise expressly set forth herein), or (2) continue this Amended and Restated Contract and, at Buyer’s election, either (a) receive an equitable reduction of the Purchase Price or (b) Seller shall pay to or credit Buyer with all proceeds or other compensation Seller has received with respect to such Taking and assign to Buyer all claims or proceeds to which Seller is entitled as a result of such Taking (collectively the “Condemnation Proceeds”). If such Taking is not “material”, in Buyer’s sole and absolute opinion, this Amended and Restated Contract shall remain in effect, Seller shall assign to Buyer at Closing all Condemnation Proceeds received by Seller or to which Seller is entitled as a result of such Taking, and there shall be no adjustment to the Purchase Price. Seller shall not consent to any Taking or agree to any condemnation award without the prior written consent of Buyer. Seller shall reasonably cooperate with Buyer after Closing (at no cost to Seller) in prosecuting any claim for a condemnation award arising prior to Closing. (5) There shall be no unrepaired damage by fire or other casualty to any portion of the Property, the estimated cost of repair of which is One Hundred Thousand Dollars ($100,000) or more. If any portion of the Property is damaged by fire or casualty and is not repaired and restored to its original condition prior to Closing and the estimated cost of repair thereof is less than One Hundred Thousand Dollars ($100,000), in such event (1) Buyer shall be required to close hereunder, and at Closing Buyer shall receive a credit against the Purchase Price in an amount equal to the aggregate estimated cost of repair of any damage to the Property remaining unrepaired at Closing, any unpaid costs of repairs performed prior to Closing, and the future loss of rental income as a result of such fire or casualty until the damage is repaired; (2) Buyer shall thereafter be responsible for the repair of the damage to the Property caused by such fire or casualty; and (3) Seller shall be entitled to prosecute all insurance claims in connection with such casualty under insurance policies obtained by Seller for the Property and to retain all insurance proceeds resulting therefrom. If the aggregate estimated cost of repairing such damage and resulting rent loss is One Hundred Thousand Dollars ($100,000) or more, then Buyer may, at its sole option, (i) terminate this Amended and Restated Contract whereupon the Deposit and any interest thereon shall be returned to Buyer and the parties shall be relieved of all further liability or obligation hereunder, or (ii) elect to proceed to Closing, in which event the provision of clauses (1), (2) and (3) above shall govern. (6) Except as is otherwise explicitly provided in Section 7(a)(5) above with respect to a casualty loss, all structural elements and mechanical, electrical, plumbing, heating, ventilating and air conditioning and other operating systems and equipment in the Property shall be in compliance with all applicable legal requirements and in the same condition as on the effective date of the Original Contract, normal wear and tear excepted. (7) The Property (including land, surface water, ground water, and improvements, if any) shall be free of Hazardous Materials, except Hazardous Materials, if any, existing at the end of the Feasibility Period and expressly approved in writing by Buyer. (8) There shall not be pending nor been threatened, any action, suit or proceeding against or affecting Seller or the Property before or by any federal or state court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign. (9) Except in the event that Buyer elects, in its sole discretion, to exercise the Defeasance Option, the following conditions precedent concerning the Existing Financing shall be satisfied: (i) The Existing Lender shall have issued the Existing Lender Consent on terms that are satisfactory to Buyer and consistent with the Facility Agent requirements of Section 1(c) and the consent of any rating agencies or other parties having an interest in or otherwise affiliated in any way with the Existing Financing that is required for or in connection with the transfer of title to the Property to Buyer subject to the lien of the Existing Financing Deed of Trust shall also have been obtained by Seller; (ii) Seller shall have received the fully executed and dated Existing Financing Release from the Existing Lender, in form and content reasonably acceptable to Seller or Seller shall have waived in writing its right to obtain the Existing Financing Release; (iii) the Existing Lender shall have issued the Existing Financing Estoppel Certificate in conformity with the requirements of Section 1(c); (iv) there shall exist no default by Seller under the Existing Financing Documents and the Existing Financing shall be current in all respects; and (v) unless the Buyer elects to complete a defeasance of the Existing Financing (Buyer shall have the right to take title to the Property at Closing subject to the lien of the Existing Financing Deed of Trust and the other Existing Financing Documents without modification of the terms thereof. In the event that Buyer elects, in its sole discretion, to exercise the Defeasance Option, then the defeasance of the Existing Financing Property shall have been fully consummated on or before the date of Closing under this Amended and Restated Contract and Seller shall convey the Property to Buyer free and clear of the lien of the Exiting Financing Deed of Trust and the terms of the other Existing Financing Documents. (10) Seller shall obtain from the Existing Tenant and from any tenants under leases entered into by Seller after the Effective Date in conformity with Section 6 of this Amended and Restated Contract, and deliver to Buyer on or before the Closing Date a completed estoppel certificate in substantially the followingform attached hereto as Exhibit I, confirming all of the information requested in Exhibit I with respect to such tenant or occupant (“Tenant Estoppel Certificates”), each in form and substance reasonably satisfactory of which Tenant Estoppel Certificates shall be dated no earlier than the date that is fifteen (15) days prior to the Facility Agent:Closing Date. (a11) each of the Facility Documents duly executed and delivered by the parties thereto, which The Property shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fundpossess all Permits necessary for its operation as an industrial warehouse building, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and same shall be in full force and effect;, in good standing and not subject to any known or threatened challenge. (j12) evidence satisfactory All covenants, representations and warranties of Seller to Buyer contained in this Amended and Restated Contract and any exhibits hereto shall be true and correct at Closing with the same force and effect as if such covenants, representations and warranties were made at and as of such time; provided that the Closing of the purchase and sale provided herein shall not be nor be deemed to be a waiver of other covenants, representations and warranties contained herein, which covenants, representations and warranties shall continue in full force and effect after Closing for the benefit of Buyer as provided herein for a period of six (6) months after Closing. Notwithstanding that certain of Seller’s representations and warranties may be limited to extent of Seller’s knowledge or Seller’s best knowledge of the facts stated therein, the conditions precedent to Buyer’s obligation to Close hereunder set forth in Section 7 (viz., that all representations and warranties of Seller be true and correct as of Closing) shall not be so limited, and the satisfaction of said conditions shall depend upon the actual correctness, as of the time of Closing, of the facts stated in all such representations and warranties. (13) Buyer and the appropriate authorities of Xxxxxxxxxx County, Maryland (the “County”) shall have executed and delivered a binding and enforceable written agreement (the “County Transaction Agreement”) pursuant to which (i) the County shall acquire the Property from Buyer, and (ii) Buyer may acquire certain other real property owned by the County in exchange for the Property (collectively, the “County Transaction”). The County Transaction Agreement shall be on terms and conditions acceptable to Buyer in its sole discretion. All feasibility study periods pursuant to the Facility Agent that County Transaction Agreement shall have expired, any County rights to terminate the County Transaction Agreement shall have expired, and all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreementsconditions precedent, if any, duly executed and delivered by to the parties thereto, which County’s obligation to consummate the County Transaction Agreement shall each be in full force and effect;have been satisfied. (l14) a certificate of a Responsible Officer The County shall have issued written evidence satisfactory to Buyer that the County has obtained all of the Borrowerrequisite final and non-appealable approvals (collectively, dated as the “Approvals”) to (a) acquire the Property either by accepting an assignment of this Amended and Restated Contract or purchasing the Property from Buyer, and (b) enter into and consummate the County Transaction pursuant to the terms of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date County Transaction Agreement; and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired Buyer shall have approved in its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause sole discretion (i1) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery all of the Collateral terms and execution conditions of the Account Control Agreement, Approvals; and (2) any exchange property to be received by Buyer in connection with the Collateral Agent has a first priority County Transaction (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and“County Property”).

Conditions Precedent to Closing. Subject to Section 3.02, the obligation The occurrence of the Lenders Closing Date and the effectiveness of the Commitments hereunder shall be subject to the conditions precedent that (i) the Facility SPV or the Originators shall have paid in full (A) all amounts required to be paid by each of them on or prior to the Closing Date pursuant to the Fee Letters and (B) the fees and expenses described in clause (i) of Section 9.4(a) and invoiced prior to the Closing Date, and (ii) each Managing Agent shall have received on or before received, for itself and each of the Closing Date Investors in its Investor Group, an original (unless otherwise indicated) of each of the followingfollowing documents, each in form and substance reasonably satisfactory to the Facility each Managing Agent: (a) A duly executed counterpart of this Agreement, the First Tier Agreement, the Fee Letters and each of the Facility other Transaction Documents duly executed and delivered by the parties theretoOriginators, which shall each be in full force and effect;the SPV or the Servicer, as applicable. (b) true and complete copies A certificate, substantially in the form of Exhibit G, of the Constituent Documents secretary or assistant secretary of the BorrowerSPV, certifying and attaching as exhibits thereto, among other things: (i) the organizational documents; (ii) resolutions of the board of managers or other governing body of the SPV authorizing the execution, delivery and performance by the SPV of this Agreement, the Fund, First Tier Agreement and the Collateral Manager as in effect other Transaction Documents to be delivered by the SPV hereunder or thereunder and all other documents evidencing necessary limited liability company action and government approvals, if any; and (iii) the incumbency, authority and signature of each officer of the SPV executing the Transaction Documents or any certificates or other documents delivered hereunder or thereunder on behalf of the Closing Date;SPV. (c) true A certificate, substantially in the form of Exhibit H, of the secretary or assistant secretary of each Originator and complete copies the Servicer certifying and attaching as exhibits thereto, among other things: (i) the articles of incorporation or other organizing document of each Originator and the Servicer (certified by the Secretary of State or other similar official of its jurisdiction of incorporation or organization, as applicable, as of a Responsible Officer recent date); (ii) the by-laws of each Originator and the Servicer; (iii) resolutions of the Borrower board of all Governmental Authorizationsdirectors or other governing body of each Originator and the Servicer authorizing the execution, Private Authorizations delivery and Governmental Filings (performance by it of this Agreement, the First Tier Agreement and the other than the UCC financing statements Transaction Documents to be filed pursuant to clause delivered by it hereunder or thereunder and all other documents evidencing necessary corporate action (gincluding shareholder consents) below)and government approvals, if any; and (iv) the incumbency, required in connection with authority and signature of each officer of each of the Originators and the Servicer executing the Transaction Documents or any certificates or other documents delivered hereunder or thereunder on its behalf. (d) A good standing certificate for the SPV issued by the Secretary of State or a similar official of the SPV’s jurisdiction of formation, as applicable, and certificates of qualification as a foreign entity issued by the Secretaries of State or other similar officials of each jurisdiction where such qualification is material to the transactions contemplated by this Agreement;Agreement and the other Transaction Documents, in each case, dated as of a recent date. (de) a A good standing certificate of a Responsible Officer for each of the Borrower certifying (i) Originators and the Servicer issued by the Secretary of State or a similar official of its jurisdiction of incorporation or organization, as to its Constituent Documentsapplicable, (ii) and certificates of qualification as to its resolutions a foreign corporation issued by the Secretaries of State or other action similar officials of its board of directors or members approving each jurisdiction where such qualification is material to the transactions contemplated by this Agreement and the other Facility Documents to which it is a party and the transactions contemplated therebyTransaction Documents, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects each case, dated as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier a recent date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;. (f) Acknowledgment copies or other evidence of filing acceptable to the Agent of proper financing statementsstatements (Form UCC-1) naming the SPV, as debtor, in favor of the Agent, as secured party, for the benefit of the Secured Parties or other similar instruments or documents as may be necessary or in the reasonable opinion of the Agent desirable under the UCC in of all appropriate jurisdictions that the Facility Agent deems necessary or desirable in order any comparable law to perfect the interests Agent’s ownership or security interest in all Receivables and the Collateral contemplated by this Agreement;other Affected Assets. (g) Acknowledgment copies or other evidence of filing acceptable to the Agent of proper financing statementsstatements (Form UCC-1), naming each Originator, as the debtor, in favor of the SPV, as assignor secured party, and the Agent, for the benefit of the Secured Parties, as assignee secured party, or other similar instruments or documents as may be necessary or in the reasonable opinion of the Agent desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the SPV’s ownership interest in all Receivables and the other Affected Assets. (h) Copies of proper financing statements (Form UCC-3), if any, necessary to release terminate all security interests and other rights of any Person in Receivables or the Collateral other Affected Assets previously granted by the Borrower or any predecessor in interest (including any transferor);each Originator. (hi) legal opinions Certified copies of requests for information or copies (addressed Form UCC-11) (or a similar search report certified by parties acceptable to the Agent) dated a date reasonably near the Closing Date listing all effective financing statements which name the SPV or each Originator as debtor and which are filed in jurisdictions in which the filings were made pursuant to clauses (f) or (g) above and such other jurisdictions where the Agent may reasonably request, together with copies of such financing statements, and similar search reports with respect to federal tax liens and liens of the Pension Benefit Guaranty Corporation in such jurisdictions. (j) Executed copies of the Blocked Account Agreements relating to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full;Blocked Accounts. (k) each A favorable opinion of Xxxx X. Xxxxx, Senior Group Counsel of Ashland, covering certain corporate matters with respect to the Eligible Hedge Agreements, if any, duly executed Servicer and delivered by the parties thereto, which shall each be Originator in full force form and effect;substance satisfactory to the Agent and Agent’s counsel. (l) a certificate A favorable opinion of a Responsible Officer of the BorrowerSquire, dated as of the Closing DateXxxxxxx & Xxxxxxx L.L.P., special counsel to the effect thatSPV, the Servicer and the Originators, covering certain corporate and UCC matters in the case of each item of Collateral pledged form and substance satisfactory to the Collateral Agent and Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;’s counsel. (m) A favorable opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P., special counsel to the SPV and the Originators, covering certain bankruptcy and insolvency matters in form and substance satisfactory to the Agent and Agent’s counsel. (n) Satisfactory results of a review and audit of the Originators’ collection, operating and reporting systems, Credit and Collection Policy, historical receivables data and accounts, including satisfactory results of a review of the Originators’ operating location(s) and satisfactory review and approval of the Eligible Receivables in existence on the date of the initial purchase under the First Tier Agreement and a written outside audit report of a nationally-recognized accounting firm as to such matters. (o) Such other opinionsapprovals, documents, instruments, certificates and documents from the Borrower opinions as the Agents Agent, any Managing Agent, any Administrator or any Lender shall have Investor may reasonably requested; andrequest.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company hereunder required to be performed on each Closing Date with respect to the Purchaser shall be subject subject, at its election, to the conditions precedent that satisfaction or waiver (which waiver, if so requested by the Facility Agent Purchaser, shall have received on be made in writing), at or before prior to the Closing Date occurring on such Closing Date, of the following, each in form and substance reasonably satisfactory to the Facility Agentfollowing conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Purchaser contained in which case such representations and warranties this Agreement shall be true and correct in all material respects on and as of such earlier date), Closing Date. (ivb) no Default or Event of Default has occurred The Purchaser shall have performed in all material respects all obligations and is continuingagreements, and complied in all material respects with all covenants, contained in this Agreement, to be performed and complied with by the Purchaser at or prior to such Closing Date. (vc) as All material governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of the transactions contemplated by the Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, the consummation of such transactions does not and will not contravene any Applicable Law, except to the incumbency and specimen signature extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (d) The Purchaser shall have delivered to the Company a certificate, executed by the Purchaser or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of its Responsible Officers authorized the conditions specified in this Section 7.1 has been satisfied with respect to execute the Facility Documents to which it is a party;Purchaser. (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as All documents, instruments, agreements and arrangements relating to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated therebyby the Documents shall be reasonably satisfactory to the Company, including acting pursuant shall have been executed and delivered by the parties thereto and no party to this Agreementany of the foregoing (other than the Company) shall have breached any of its material obligations thereunder. SECTION 7.2. Conditions to The Purchaser's Obligations. The obligations of the Purchaser hereunder required to be performed at each Closing shall be subject, at its election, to the satisfaction or waiver (iiiwhich waiver, if so requested by the Company, shall be made in writing), at or prior to the Closing, of the following conditions: (a) that its The representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, Company contained in which case such representations and warranties this Agreement shall be true and correct in all material respects when made and on and as of such earlier date)Closing Date. (b) The Company shall have performed in all material respects all obligations and agreements, (iv) and complied in all material respects with all covenants, contained in this Agreement and the other Documents, to be performed and complied with by it at or prior to such Closing Date, and there shall exist no Default or Event of Default (as defined in the Credit Agreement) under the Credit and Security Agreements. (c) The Company shall have entered into or caused to become effective such agreements and governing documents as the Purchaser may deem reasonably appropriate to effect the provisions of the Voting Agreement, and each of such agreements and documents shall be in full force and effect. (d) The Company's Board of Directors shall consist of not more than 11 directors. If immediately following the subject Closing, the Purchaser would beneficially own securities of the Company that constitute, or if exercised, exchanged or converted into Common Stock would constitute, at least 33 1/3% of the aggregate issued and outstanding Common Stock, provided that the Purchaser has occurred given notice to the Company at least two Business Day's prior to a Closing (without duplication) of its Purchaser Nominees, the Company shall have appointed a total of six of such Purchaser Nominees (or such lessor number as provided by the Purchaser) to serve as members of the Company's Board of Directors. (e) All Documents and all documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be reasonably satisfactory to the Purchaser, shall have been executed and delivered by the parties thereto, be in full force and effect and no party to any of the foregoing (other than the Purchaser) shall have breached any of its material obligations thereunder. (f) (i) Since December 31, 1999, no change, occurrence or development shall have occurred, been threatened or become known to the Purchaser that could reasonably be expected to have a Material Adverse Effect, (ii) the Purchaser shall not have become aware of any information or other matter relating to the Company (x) of which the Company (but not the Purchaser) had knowledge on or prior to the date of this Agreement, (y) that, in the Purchaser's reasonable judgment, is continuinginconsistent with any information or other matter relating to the Company disclosed to the Purchaser by the Company or any of its representatives prior to the date of this Agreement, and (vz) would have been viewed by the Purchaser, in its reasonable judgment, as having materially and adversely altered the total mix of information made available to the Purchaser prior to the date of this Agreement. For purposes of this Section 7.2(f), the Company shall be deemed to have "knowledge" of a particular fact or other matter if (I) any individual who is serving, or who has at any time served, as a director, officer or management-level employee of the Company is actually aware of such fact or other matter; or (II) a prudent individual serving as a director, officer or management-level employee of the Company could be expected to discover or otherwise become aware of such fact or other matter in the diligent exercise of his or her duties in such capacity. There shall have been no material adverse development in any pending litigation that in the reasonable good faith judgment of the board of directors of the Purchaser, after consultation with legal counsel, could reasonably be likely to result in a material adverse judgment against the Company resulting in damages (after taking into account any recoveries under available insurance) in an amount in excess of $3,000,000. (g) Since December 31, 1999, the business of the Company shall have been operated in compliance with all Applicable Laws, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. (h) There shall be no litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority pending or threatened which, in the reasonable judgment of the Purchaser, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Benefit Plans) pending or threatened against the Company or its Subsidiaries which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (i) During the seven-calendar-day period ending on such Closing Date, (A) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the over-the-counter market shall not have been suspended and minimum prices shall not have been established on either of such exchanges or such market by such exchange or by the Commission, and (B) a general banking moratorium shall not have been declared by Federal or New York or California authorities. (j) All registration rights agreements with the Company shall have been amended to provide that no other person will exercise any demand or piggy back registration rights without the prior written consent of the Purchaser. (k) All governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of all of the transactions contemplated by the Documents to occur on such Closing Date shall have been obtained and shall be in full force and effect, and the Purchaser shall be reasonably satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (l) The Company shall have delivered to the Purchaser a certificate, executed by it or on its behalf by a duly authorized representative, dated as of such Closing Date, certifying that each of the conditions (other than any condition the fulfillment of which is subject to the reasonable satisfaction of the Purchaser) specified in this Section 7.2 has been satisfied. (m) Sidley & Austin, counsel to the Company, shall have delivered to the Purchaser an opinion, dated such Closing Date, addressed to the Purchaser, substantially in the form attached as Exhibit J hereto. (n) The Purchaser shall have received delivery of the Securities as set forth hereunder. (o) The Company shall have delivered to the Purchaser certificates of the appropriate public officials to the effect that each of the Purchaser and its Subsidiaries is a validly existing corporation in good standing in its jurisdiction of organization dated not more than 5 days prior to the Closing Date. (p) The Company shall have delivered to the Purchaser a certificate of the Secretary of the Company (i) certifying that a true and correct copy of the Charter, Bylaws and all resolutions of the Board of Directors authorizing the execution and delivery of this Agreement and each Document to which the Company is a party and authorizing the performance by the Company of the transactions contemplated hereby and thereby is attached thereto and (ii) containing the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;officers of the Company. (fq) proper financing statements, under the UCC in The Company shall have taken all jurisdictions necessary action so that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each at least two thirds of the Secured Parties) Company's then current Board of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to Directors shall have approved the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all election of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andPurchaser Nominees.

Conditions Precedent to Closing. Subject The respective obligations of each Party and the Company to Section 3.02, consummate the obligation of transactions contemplated by this Agreement to occur at the Lenders hereunder Closing shall be subject to the satisfaction or waiver of the following conditions precedent that the Facility Agent shall have received on or before prior to the Closing Date the following, each in form and substance reasonably satisfactory to the Facility AgentDate: (a) each no statute, rule, regulation, executive order, decree, or preliminary or permanent injunction shall have been enacted, entered, promulgated or enforced by any U.S. state or federal or foreign court of competent jurisdiction or other Governmental Authority which prohibits consummation of the Facility Documents duly executed and delivered transactions contemplated by the parties theretoJoint Venture Agreements, which whether temporary, preliminary or permanent; provided that the Parties hereto shall each be in full force and effectuse their reasonable efforts to have any such order, decree or injunction vacated; (b) true all waiting periods and complete copies other approvals applicable to the transactions contemplated by the Joint Venture Agreements under the HSR Act, if applicable, shall have been terminated or expired and all other Governmental Approvals necessary for consummation of the Constituent Documents of the Borrower, the Fund, transactions contemplated by Joint Venture Agreements shall have been obtained or made and the Collateral Manager as be in effect on at the Closing Date, except for any such Governmental Approvals, the failure of which to obtain or make would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; provided that no Party shall be required to commence or defend any Action before any Governmental Authority in order to satisfy this condition; (c) true and complete copies certified by a Responsible Officer each of the Borrower parties to each of all Governmental Authorizations, Private Authorizations and Governmental Filings the Joint Venture Agreements (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer shall have duly delivered to each of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as parties thereto each of the Closing Date Joint Venture Agreements (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (ivother than this Agreement) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (ed) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth of each other Party and the Company contained in the Collateral Management this Agreement that are true and correct in all material respects qualified as to materiality or words of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties similar import shall be true and correct in all material respects respects, and those not so qualified shall be true and correct in all respects, in each case, as of such earlier date), (iv) no Default or Event of Default has occurred the date hereof and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on as if made at the Closing Date, (B) except for those granted pursuant to this Agreement representations and warranties which are made as of a specific date, which representations and warranties shall have been true and correct in all material respects or true and correct in all respects, as the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in case may be, as of such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agentdate; and (ve) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such each other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender party hereto shall have reasonably requested; andperformed or complied with in all material respects each covenant and agreement required in this Agreement to be performed by it at or prior to the Closing.

Conditions Precedent to Closing. Subject (a) Purchaser's obligation under this Agreement to Section 3.02, purchase the obligation of the Lenders hereunder shall be Premises is subject to the conditions precedent that fulfillment of each of the Facility Agent following conditions, subject, however, to the provisions of Section 10(c): (i) The representations and warranties of Seller contained herein shall have received on or before be true, accurate and correct as of the Closing Date the following, each in form and substance reasonably satisfactory except to the Facility Agent:extent they relate only to an earlier date (subject to the provisions of Section 8(a)(ii)); (aii) each Seller shall be ready, willing and able to deliver title to the Premises in accordance with the terms and conditions of this Agreement; and (iii) Seller shall have delivered all the Facility Documents duly executed documents and delivered other items required pursuant to Section 11, and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to be performed or complied with by the parties thereto, which shall each be in full force and effect;Seller at or prior to the Closing. (b) true and complete copies Seller's obligation under this Agreement to sell the Premises to Purchaser is subject to the fulfillment of each of the Constituent Documents following conditions, subject, however to the provisions of Section 10(c): (i) the Borrowerrepresentations and warranties of Purchaser contained herein shall be true, the Fund, accurate and the Collateral Manager correct as in effect on of the Closing Date; (cii) true Purchaser shall have delivered the funds required hereunder and complete copies certified by a Responsible Officer of all the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements documents to be filed pursuant executed by Purchaser set forth in Section 12 and shall have performed all other covenants, undertakings and obligations, and complied with all conditions required by this Agreement to clause be performed or complied with by Purchaser at or prior to the Closing; (giii) below), if any, all consents and approvals of governmental authorities and parties to agreements to which Purchaser is a party or by which Purchaser's assets are bound that are required in connection with respect to the consummation of the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed obtained and copies thereof shall have been delivered by to Seller at or prior to the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effectClosing; (jiv) evidence satisfactory on or prior to Closing Date, (A) Purchaser shall not have applied for or consented to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses appointment of a receiver, trustee or liquidator for itself or any of its assets unless the Collateral Agent same shall have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of discharged prior to the Closing Date, to the effect thatand no such receiver, in the case of each item of Collateral pledged to the Collateral Agentliquidator or trustee shall have otherwise been appointed, on the Closing Date and immediately unless same shall have been discharged prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant Purchaser shall not have admitted in writing an inability to this Agreement and the Account Control Agreement and pay its debts as they mature, (C) Permitted Liens; Purchaser shall not have made a general assignment for the benefit of creditors, (iiD) the Borrower has acquired its ownership in such Collateral in good faith without notice Purchaser shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to Purchaser, (E) Purchaser shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any adverse claimbankruptcy, except as described reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the material allegations of a petition filed against it in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any proceedings under any such interest has law, or had any petition filed against it in any proceeding under any of the foregoing laws unless the same shall have been assigneddismissed, pledged cancelled or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral terminated prior to the Collateral AgentClosing Date; and (v) upon grant by [INTENTIONALLY DELETED]. (c) In the Borrower, Delivery of the Collateral and execution of the Account Control Agreementevent that any condition contained in Section 10(a) or (b) is not satisfied, the Collateral Agent has party entitled to the satisfaction of such condition as a first priority condition to its obligation to close title hereunder shall have as its sole remedy hereunder the right to elect to (subject to clause i) waive such unsatisfied condition whereupon title shall close as provided in this Agreement or (ii) of terminate this Agreement. In the definition of Permitted Liensevent such party elects to terminate this Agreement, this Agreement shall be terminated, the Fund shall be returned to the Purchaser, except if the Purchaser (and not the Seller) perfected security interest is otherwise in the Collateral; (m) such other opinionsmaterial default hereunder, instruments, certificates and documents from the Borrower as the Agents or any Lender neither party shall have reasonably requested; andany further rights, obligations or liabilities hereunder, except for the Surviving Obligations. Nothing contained in this Section 10(c) shall be construed so as to bestow any right of termination upon a party for the failure of a condition to be satisfied unless such party is expressly entitled to the satisfaction of such condition as provided in Section 10(a) or (b).

Conditions Precedent to Closing. Subject to Section 3.02, the The obligation of each Investor to acquire Shares at the Lenders hereunder shall be Closing is subject to the conditions precedent that the Facility Agent shall have received fulfillment to such Investor’s satisfaction, on or before prior to the Closing Date the followingDate, each in form and substance reasonably satisfactory to the Facility Agent: (a) of each of the Facility Documents duly executed and delivered following conditions, any of which may be waived by the parties thereto, which shall each be in full force and effect;such Investor (as to itself only): (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth in of the Facility Documents to which it is a party are Corporation contained herein shall be true and correct in all material respects as of the Closing Date (except to the extent such for those representations and warranties expressly relate which are qualified as to any earlier datemateriality, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (ivrespects) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations date when made and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, as though made on and as of such date, except for such representations and warranties that speak as of a specific date. (ii) The Corporation shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by it at or prior to the effect thatClosing. (iii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by this Agreement. (iv) The Corporation shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and waivers necessary for consummation of the case purchase and sale of each item the Shares at the Closing, all of Collateral pledged which shall be and remain so long as necessary in full force and effect. (v) Since the date of execution of this Agreement, no event or series of events shall have occurred that has had or would reasonably be expected to the Collateral Agenthave a Material Adverse Effect. (vi) The Shares have been duly listed, subject to official notice of issuance, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:New York Stock Exchange. (ivii) the Borrower is the owner The Common Stock shall not have been suspended, as of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, by the Commission or the New York Stock Exchange from trading on the New York Stock Exchange nor shall suspension by the Commission or the New York Stock Exchange have been threatened, as of the Closing Date, either (A) in writing by the Commission or the New York Stock Exchange or (B) those granted pursuant to this Agreement and by falling below the Account Control Agreement and (C) Permitted Liens;minimum listing maintenance requirements of the New York Stock Exchange. (iiviii) The Corporation shall have delivered the Borrower has acquired its ownership Corporation Deliverables in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above;accordance with Section 1.3. (iiiix) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant The Corporation shall have issued an aggregate of at least 4,347,826 Shares to this Agreement and the Account Control Agreement;Investors at Closing. (ivx) the Borrower has full right This Agreement shall not have been terminated as to grant a security interest such Investor in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andaccordance with Section 7.10 herein.

Conditions Precedent to Closing. Subject to Section 3.02, the The obligation of the Lenders Parties to consummate the sale and purchase of the Company Shares as provided hereunder (the “Closing”) shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent: (a) each the receipt of the Facility Documents duly executed and delivered by the parties theretoInvestment Control Clearances, which shall each be in full force and effect; if applicable, (b) true and complete copies the receipt of the Constituent Documents of the BorrowerAntitrust Clearances, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer no injunction, order or decree shall be in effect that prohibits or makes illegal the completion of the Borrower of all Governmental AuthorizationsTransaction, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate as to the obligation of a Responsible Officer of the Borrower certifying Purchaser and Parent: (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects accuracy as of the Closing Date (except to or, for any representation or warranty that speaks as of a specified date, as of such specified date) of the extent such representations and warranties expressly relate to any earlier date, of Sellers set forth in which case such Articles 8.1 through 8.3 in all but de minimus respects and the representations and warranties shall be true and correct of Sellers set forth in Articles 8.4 through 8.7 in all material respects as of such earlier date)respects, (ivii) no Default or Event of Default has event referred to in Schedule 6.1(c) shall have occurred and is continuing(iii) none of the Company or any of its Affiliates or subsidiaries shall have any interest, participation, asset, rights of any nature whatsoever or any commercial arrangement with any Sanctioned Person or Person subject to Sanctions that would or would reasonably be expected to result in the violation of Laws regarding Sanctions by Parent, Purchaser, the Company or their respective Subsidiaries, and (ve) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer obligation of the Collateral Manager certifying Sellers: (ix) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects accuracy as of the Closing Date (except to or, for any representation or warranty that speaks as of a specified date, as of such specified date) of the extent such representations and warranties expressly relate to any earlier date, of Purchaser and Parent set forth in which case such Articles 9.1. through 9.3 in all but de minimus respects and the representations and warranties shall be true of Purchaser and correct Parent set forth in Article 9.4 in all respects and the representations and warranties of Purchaser and Parent set forth in Article 9.5 in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (vy) as to the incumbency and specimen signature delivery by the Purchaser, at least 3 Business Days before the Closing, of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions evidence that the Facility Agent deems necessary or desirable in order to perfect Purchaser either holds the interests in the Collateral contemplated by this Agreement; (g) copies full amount of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted cash required by the Borrower Offer or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of has secured certain funds bank financing for the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andsame amount.

Conditions Precedent to Closing. Subject to Section 3.02(a) Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, the obligation of the Lenders hereunder Purchaser to consummate the Closing shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction, at or before the Closing Date the following, each in form and substance reasonably satisfactory prior to the Facility Agent: (a) Closing, of each of the Facility Documents duly executed and delivered following conditions (any of which may be waived in whole or in part by the parties thereto, which shall each be in full force and effect;Purchaser): (bi) true All permits, approvals, clearances, filings with and complete copies consents of the Constituent Documents of the Borrower, the Fund, any and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements Authorities required to be filed pursuant to clause (g) below)obtained, if anyreceived or made by the Company, required including, without limitation, Marad, in connection with the Closing and the transactions contemplated by this Agreement;Agreement and the other Transaction Documents shall have been procured. (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions There shall not be in force any order or other action decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the consummation of its board the Closing. (iii) Each of directors or members approving the representations and warranties of the Company contained in this Agreement and the other Facility Transaction Documents to which it the Company is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred both on the date hereof and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except that any such representation or warranty which speaks, by its terms, as of a specific date or time other than the date hereof or the Closing, shall be true and correct as of such date), with the same effect as if made on the Closing Date at and as of the Closing, and each of the covenants and agreements of the Company to be performed or complied with by the Company as of or prior to the extent such Closing shall have been performed or complied with by the Company in all material respects. (iv) The Company shall have delivered the certificates, and the other documents (if any) required to be delivered by it pursuant to Section 2(b)(ii) in accordance with the provisions thereof. (b) Notwithstanding any other provision of this Agreement or any of the other Transaction Documents, the obligation of the Company to consummate the Closing shall be subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived in whole or in part by the Company): (i) All permits, approvals, clearances, filings with and consents of any and all Governmental Authorities required to be obtained, received or made by the Company, including, without limitation, Marad, in connection with the Closing and the transactions contemplated by this Agreement and the other Transaction Documents shall have been procured. (ii) There shall not be in force any order or decree, statute, rule or regulation by any Governmental Authority restraining, enjoining or prohibiting the consummation of the Closing. (iii) Each of the representations and warranties expressly relate of the Purchaser contained in this Agreement and the other Transaction Documents to any earlier date, in which case such representations and warranties the Purchaser is a party shall be true and correct in all material respects both on the date hereof and as of the Closing Date (except that the representation and warranty of the Purchaser set forth in Section 3(h) hereof shall be true and correct in all respects as of such earlier date), (iv) no Default or Event of Default has occurred date and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date), to with the same effect that, in the case of each item of Collateral pledged to the Collateral Agent, as if made on the Closing Date at and immediately as of the Closing, and each of the covenants and agreements of the Purchaser to be performed or complied with by the Purchaser as of or prior to the delivery thereof on Closing shall have been performed or complied with by the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership Purchaser in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;all material respects. (iv) The Purchaser shall have made the Borrower has full right payments specified in the Payment Instructions Letter to grant a security interest in and assign and pledge such Collateral to be made at the Collateral Agent; andClosing. (v) upon grant The Company shall have received the Final Signed Affidavits and the Instruments of Accession and the other documents (if any) required to be received by the Borrower, Delivery of Company pursuant to Section 2(b)(ii) in accordance with the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andprovisions thereof.

Conditions Precedent to Closing. Subject (a) Buyer's obligation to Section 3.02, close the obligation purchase and sale of the Lenders hereunder Shares shall be subject to satisfaction of all of the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each set forth in form and substance reasonably satisfactory to the Facility Agent:this subparagraph 7.1 (a) each of the Facility Documents duly executed and delivered (unless expressly waived in writing by the parties theretoit at, which shall each be in full force and effect;or any time prior to, Closing): (bi) The representations and warranties of Seller contained in this Agreement or in any certificate delivered pursuant hereto by or on behalf of Parent or Seller shall have been true and complete copies when made and shall also be true and complete at and as of the Constituent Documents time of the BorrowerClosing (except for changes permitted under Section 5.1 of Article V). (ii) Seller shall have caused all covenants, the Fundagreements and conditions required by this Agreement to be performed or complied with by it prior to or at Closing to be so performed or complied with. (iii) Seller shall have delivered to Buyer a certificate, signed by each of Seller and the Collateral Manager dated as in effect on of the Closing Date;, certifying as to the fulfillment of the conditions set forth in clauses (i) and (ii) of this subparagraph 7.1(a). (civ) true No action or proceeding shall have been instituted and complete copies certified remain pending by or before any court or other governmental body or arbitration tribunal seeking, and there shall not be in effect any injunction, order or decree of a Responsible Officer court of competent jurisdiction the effect of which is, (x) to restrain or prohibit or to recover damages in respect of the Borrower transactions contemplated by this Agreement, (y) to revoke or suspend any material license, permit, order or approval, or (z) to question the validity or legality of this Agreement or any action taken or to be taken pursuant hereto or the consummation of the transactions contemplated hereby, and there shall be no such action or proceeding pending which, if adversely determined, would materially and adversely affect, or injunction, order or decree in effect which materially and adversely affects, the business, financial condition and operations of Company. -45- 47 (v) Regulatory approvals from NASD Regulation, Inc. and the State Securities Board of the State of Texas ("Texas B.D. Approval") to the change in ownership of FIMI Securities, Inc. from Sellers to Buyer shall have been obtained and the termination of any required waiting period shall have occurred on terms reasonably satisfactory in all material respects to Buyer and Seller ("NASD Approval"). (vi) All lessors under leases and parties to agreements of Company, other than such leases and agreements which do not require consent for the consummation of the transactions contemplated by this Agreement, shall have consented to the consummation of the transactions contemplated hereby. At Closing, Seller shall deliver to Buyer copies of all Governmental Authorizations, Private Authorizations consents referred to in the preceding sentence. (vii) Seller shall have furnished Buyer with an opinion of counsel as to the status of Seller and Governmental Filings each corporation included within the definition of Company and the transactions contemplated by this Agreement substantially in the form of Exhibit "F." (other than the UCC financing statements to be filed pursuant to clause viii) Except as provided in Schedule 7.1(a) (g) belowviii), if anysince December 31, required 1997, there shall not have been any material adverse change in the business, financial condition or operations of each corporation included within the definition of Company. (ix) All corporate proceedings in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party all documents and the transactions contemplated therebyinstruments incident thereto, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct shall be reasonably satisfactory in all material respects as of the Closing Date (except in substance and form to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Buyer. (ex) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement The Employment Agreements shall have been executed by Sellers, Messrs. Delixx, Xxxxxxxxx xxx Franx, respectively. (xi) The Non-Competition Agreements shall have been executed by Sellers, Messrs. Delity, Ellsworth, and delivered Franx, respectively. (xii) Stock certificates representing the Shares shall have been duly endorsed for transfer to Buyer, or accompanied by the Borrowera proper and duly executed instrument of assignment to Buyer, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force have all necessary stock transfer stamps attached. (xiii) Resignations shall have been executed by all of the directors of each company constituting the Company (except for Messrs, Delity, Ellsworth, and effectFranx). (xiv) The originals (to the extent reasonably available to Seller) or duplicates of all of the minute books, stock books and all other corporate and business records or documents of Company shall have been delivered or made available to Buyer; (jxv) evidence satisfactory Either an affidavit that Seller is not a foreign person (as provided in I.R.C. ss. 1445(b)(2)) or an affidavit of each corporation included within the definition of Company that complies with I.R.C. ss. 1445(b)(3) shall have been properly executed in the form attached hereto as Exhibit "O." (xvi) All books and records of each corporation included within the definition of Company shall have been delivered or made available to Buyer at each corporation's, included within the Facility Agent that all Closing Date Expenses definition of Company, corporate headquarters in Houston, Texas. (xvii) The shareholders of Buyer shall have approved this Agreement at the Buyer's Annual Meeting of Shareholders in accordance with applicable law, and outstanding fees Messrs. Delity and expenses Ellsxxxxx shall have been appointed as directors of the Collateral Agent Parent. (xviii) The Shelxx Xxxxx Xxxmissory Notes shall have been paid in full;full and marked canceled by Shelxx Xxxxx. (kxix) each of the Eligible Hedge AgreementsThe Shares shall have been released by Shelxx Xxxxx xxxm that certain Security Agreement - Pledge, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated effective as of the Closing DateMay 1, to the effect that1998, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens. (xx) At Closing, claims or encumbrances Seller shall present its management internal accounting of any nature whatsoever except for the balance sheets and working capital of Company as of the month end just prior to the Closing Date (Athe "Closing Date Balance Sheet") those which are being released and management's representation affirming such balance sheet. The Closing Date Balance Sheet shall fairly present the net worth and working capital of Company as of the date specified and the net worth and working capital of Company and shall not be less than as reflected on the Closing DateDecember 31, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice 1997, balance sheets of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andCompany.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company’s Obligations. The obligations of the Lenders Company hereunder shall required to be subject to the conditions precedent that the Facility Agent shall have received performed on or before the Closing Date shall be subject, at the followingelection of the Company, each in form and substance reasonably satisfactory to the Facility Agentsatisfaction or waiver, at or prior to the Closing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of each Holder contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date (except to with the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full same force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses effect as though made on and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date. (b) Each Holder shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date be performed and immediately complied with by such Holder at or prior to the delivery thereof on the Closing Date:. (c) Any applicable waiting period under the HSR Act shall have expired or been terminated. (d) The Company shall have received, on terms reasonably satisfactory to the Company, Apollo Management and Blackstone, any consent or waiver necessary under the Credit Agreement to permit the performance of this Agreement and consummation of the Transactions. (e) The stockholders of the Company shall have approved the Issuance as required by Applicable Law. (f) The Holders shall have entered into each of the Supplementary Registration Rights Agreement and the Supplementary Shareholders Agreement. (g) The Holders shall have delivered certificates representing their Shares to the Company. (h) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (i) The concurrent consummation of the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant Exchange by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority Apollo/Blackstone Shareholders (subject to clause (ii) of the definition of Permitted Liens) perfected security interest as defined in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andShareholders Agreement).

Conditions Precedent to Closing. Subject 4.01 Operating Partnership's obligation under this Agreement to Section 3.02, consummate the obligation of the Lenders hereunder shall be transactions contemplated herein is subject to the conditions precedent that fulfillment of each of the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent:following conditions. (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth in the Facility Documents to which it is a party are true of Company contained herein shall be true, accurate and correct in all material respects as of the Closing Date (Date, except to the extent such representations and warranties they expressly relate only to any an earlier date, in . (b) All consents and approvals of governmental authorities and parties to agreements to which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default Company is a party or Event of Default has occurred and by which any asset owned by Company is continuing, and (v) as bound that are required with respect to the incumbency and specimen signature consummation of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed obtained and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and copies thereof shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately Operating Partnership at or prior to the delivery thereof on the Closing Date:Closing. (ic) the Borrower is the owner of such Collateral free and clear of any liens, claims On or encumbrances of any nature whatsoever except for (A) those which are being released on prior to the Closing Date, (Bi) those granted pursuant Company shall not have applied for or consented to this Agreement the appointment of a receiver, trustee or liquidator for itself or any of its assets unless the same shall have been discharged prior to the Closing Date, and no such receiver, liquidator or trustee shall have otherwise been appointed, unless same shall have been discharged prior to the Account Control Agreement and (C) Permitted Liens; Closing Date, (ii) the Borrower has acquired Company shall not have admitted in writing an inability to pay its ownership in such Collateral in good faith without notice of any adverse claimdebts as they mature, except as described in clause (i) above; (iii) Company shall not have made a general assignment for the Borrower has not assignedbenefit of creditors, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right Company shall not have been adjudicated a bankrupt or insolvent, or had a petition for reorganization granted with respect to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and Company, (v) upon grant by Company shall not have filed a voluntary petition seeking reorganization or an arrangement with creditors or taken advantage of any bankruptcy, reorganization, insolvency, readjustment or debt, dissolution or liquidation law or statute, or filed an answer admitting the Borrowermaterial allegations of a petition filed against it in any proceeding under any such law or statute, Delivery of or had any petition filed against it in any proceeding under any such law or statute unless the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender same shall have reasonably requested; andbeen dismissed, canceled or terminated prior to the Closing Date.

Conditions Precedent to Closing. Subject (a) All obligations hereunder of Seller are subject, at the sole option of Seller, to Section 3.02, the obligation fulfillment prior to or at the Closing of each and every one of the Lenders hereunder shall following conditions: (i) All of the agreements and covenants contained in this Agreement that are to be subject to the conditions precedent that the Facility Agent shall have received complied with, satisfied and performed by Xxxxx on or before the Closing Date the followingshall have been complied with, each in form satisfied and substance reasonably satisfactory to the Facility Agent:performed. (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action All of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth made by Buyer in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties this Agreement shall be true and correct in all material respects both on and as of such earlier date), (iv) no Default or Event the date of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management this Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations on and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date Date. (except iii) Buyer shall deliver at the Closing to Seller all of the payments and documents referred to in Subsection 8(a) hereof. (iv) No suit, action, or proceeding shall be instituted before any court or governmental agency or other body to restrain or prevent the transaction contemplated hereunder, nor shall any governmental investigation relating to the extent such transactions contemplated by this Agreement have been commenced and not resolved by the Closing Date. (b) All obligations of Buyer under this Agreement are subject, at the sole option of Buyer, to the fulfillment prior to or at the Closing of each and every one of the following conditions: (i) All of the agreements and covenants contained in this Agreement that are to be complied with, satisfied and performed by Seller on or before the Closing Date shall have been complied with, satisfied and performed. (ii) All of the representations and warranties expressly relate made by Seller in this Agreement or in any other agreement, certificate, financial statement, instrument or document furnished or to any earlier date, in which case such representations and warranties be furnished to Buyer shall be true and correct in all material respects both on and as of such earlier date), (iv) no Default or Event the date of Default has occurred this Agreement and is continuing, on and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date. (iii) The business and properties of Seller shall not have been materially adversely affected in any way, whether by fire, casualty, act of God or otherwise. (iv) Seller shall deliver at the Closing to Buyer all of the documents referred to in Subsection 8(b) hereof. (v) No suit, action, or proceeding shall be instituted before any court or governmental agency or other body to restrain or prevent the transaction contemplated hereunder, nor shall any governmental investigation relating to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date transactions contemplated by this Agreement have been commenced and immediately prior to the delivery thereof on not resolved by the Closing Date:. (ivi) A court order, acceptable to the Borrower is Buyer in its sole discretion, issued by the owner United States Bankruptcy Court for the Western District of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to Washington approving this Agreement and the Account Control Agreement and (C) Permitted Liens;action contemplated herein, in Chapter 11 Case Number 12-10808-MLB. (iivii) the Borrower has acquired its ownership in such Collateral in good faith without notice Receipt of any adverse claima copy of a Confirmed Plan of Reorganization, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral acceptable to the Collateral Agent; and (v) upon grant Buyer, issued by the Borrower, Delivery United States Bankruptcy Court for the Western District of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest Washington in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andChapter 11 Case Number 12-10808-MLB.

Conditions Precedent to Closing. Subject to Section 3.02, the 1. The obligation of Desa to purchase and accept delivery of the Lenders hereunder Subject Assets to be sold, assigned, transferred and delivered at the Closing shall be subject to the conditions precedent that the Facility Agent shall have received satisfaction on or before prior to the Closing Date of the followingfollowing conditions, each the compliance with or occurrence of which may be waived in form and substance reasonably satisfactory to the Facility Agentwriting by Desa: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its A. The representations and warranties set forth of Remington contained in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date; Remington shall have performed, complied with or satisfied all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by it at or prior to the Closing Date; and there shall have been delivered to Desa on the Closing Date such certificates and other documents with respect to the foregoing and in compliance with this Agreement as Desa may reasonably request. B. No action or proceeding shall be pending or threatened at any time prior to or at the Closing Date before any court or governmental body by any person not a party to this Agreement or any public agency or authority seeking to restrain, enjoin or prohibit, or damages or other relief in connection with the execution and delivery of this Agreement or the sale, assignment, transfer or delivery or the purchase hereunder. C. Remington shall have delivered or caused to be xxxxxxxxx to Desa such deeds, bills of sale, assignments and other documents of transfer as required to transfer all its right, title and interest to all the Subject Assets and the business of the Department to be sold to Desa pursuant to this Agreement, such deeds, bills of sale, assignments and other documents of transfer to be satisfactory in form and substance to Desa and its counsel and to be in compliance with this Agreement. D. There shall have been no material adverse change in the Subject Assets taken as a whole, or in the business, general affairs, condition (financial or otherwise), management, financial position or results of operations of the Department from that set forth on the financial statements as at December 31, 1968 and May 31, 1969. E. Remington shall have furnished to Desa an opinion, xxxxx xxe Closing Date, of Richard H. Rea, General Counsel for Remington, in xxxx xxx xxxxtance satisfactory to Desa and its counsel, to the effect that: (1) Remington is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with full corporate power and authority to own and hold its properties and conduct its business as presently operated, and to enter into, and carry out the transactions contemplated by, this Agreement, the Product Supply Agreement and the Export Sales Agreement; (2) Remington has taken all action (corporate and other) necessary for the due authorization, execution, delivery and performance of this Agreement, the Product Supply Agreement and the Export Sales Agreement in accordance with their terms, and this Agreement, the Product Supply Agreement, and the Export Sales Agreement have each been duly authorized, executed and delivered by Remington and each constitutes a legal, valid and binding obligation of Remington in accordance with its terms; (3) Each deed and document of sale, assignment, transfer or delivery delivered to Desa pursuant to the Agreement has been duly authorized, executed and delivered by Remington; (4) The execution and delivery of this Agreement, the Product Supply Agreement and the Export Sales Agreement, and the performance of, and compliance with, the terms and conditions thereof, have not and will not violate any provision of applicable law or the Articles of Incorporation or ByLaws of Remington and have not and will not conflict with or result in any breach of any of the terms or conditions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon, any of the Subject Assets pursuant to any agreement, instrument, decision or order known to such counsel to which Remington is a party, by which it is bound, or to which any of the Subject Assets are subject; (5) To the best of counsel's knowledge, there do not exist any violations of, or defaults under, any agreement, instrument, decision or order to which Remington is a party, by which it is bound, or of which any of the Subject Assets are subject; and (6) Remington has duly and validly sold, assigned, transferred and delivered to Desa (by special warranty deeds in the case of each item real property and appropriate instruments and documents of Collateral pledged transfer in the case of all other Subject Assets, in proper form and duly executed and acknowledged) all its right, title and interest in and to the Collateral AgentSubject Assets. F. All required authorizations, consents, and approvals of any authority or person in respect of this Agreement, the Product Supply Agreement and the Export Sales Agreement and of the consummation of the transactions set forth herein and therein and contemplated hereby and thereby shall have been duly obtained. G. The purchase and sale contemplated by the Canada Purchase and Sale Agreement, dated as of July 18, 1969, between Desa and Remington Arms of Canada, Limited shall have been consummated. H. Remington shall have delivered to Desa such xxxxxxxxxl certificates, instruments and documents as Desa or its counsel may reasonably request. I. The validity of all transactions herein mentioned as well as the form and substance of all opinions, deeds, certificates, instruments and other documents to be delivered by Remington hereunder, shall be satisfactory to Desa's counsel, Messrs. Sullivan & Cromwell. J. A sufficient number of employees in the Department at the Park Forest Plant shall have accepted employment by Desa so that Desa may conduct the business of the Department in substantially the manner and at substantially the levels existing prior to the Closing Date. K. The contract dated May 2, 1969, between Remington and Montgomery Ward and Company shall have been assigned to Xxsa xxd Montgomery Ward shall have consented to the xxxxxxxxxt. L. There shall have been delivered to Desa certificates for all of the outstanding capital stock of Mall Tool Company, a Delaware corporation incorporated on November 24, 1958, duly endorsed in blank or with stock powers attached and in negotiable form for transfer and with all transfer tax stamps, if any, July affixed, together with all of the books and records of such corporation; and Desa shall have received a certificate of a Vice President and the Treasurer of Remington to the effect that to the best of their knowledge, as of the Closing Date, Mall Tool Company has no liabilities, obligations or commitments of any kind and only such assets in such amounts as may be set forth in such certificate. M. The Accountant's Agreed Book Value shall not be less than the Department's Agreed Book Value. 2. The obligations of Remington to sell, assign, transfer and deliver the Subject Assets and the business of the Department at the Closing shall be subject to the satisfaction at or prior to the Closing Date of the following conditions, the compliance with or occurrence of which may be waived in writing by Remington: A. The representations and warranties of Desa contained in this Agreement shall be true and correct on and as of the Closing Date, with the same effect as though such representations and warranties had been made on and as of the Closing Date; Desa shall have complied with or satisfied all agreements, covenants and conditions required by this Agreement to be performed, complied with or satisfied by them at or prior to the Closing Date; and there shall have been delivered to Remington on the Closing Date such certificates and immediately other documents with respect to the foregoing and in compliance with this Agreement as Remington may reasonably request. B. Remington shall have received the Note and a check xx xxxxks payable to its order pursuant to Section 3 of Article I of this Agreement. C. Desa shall have assumed by appropriate instruments xxx obligations and liabilities to be assumed by it under this Agreement (other than as provided in Section 2 of Article XIV), which instruments shall provide that Desa will indemnify and hold harmless Remington from any and all damages, claims, losses, liabilities and expenses (including but without limitation, legal and other expenses) which result from or relate to any act, omission, default or arrearage by Desa from and after May 31, 1969 with respect to such obligations and liabilities so assumed as of such date, except that Desa shall not assume any obligations or liabilities with respect to product liability claims or litigation involving personal injury or death arising prior to the delivery thereof on the Closing Date:. (i) the Borrower is the owner of such Collateral free and clear of any liensD. Desa shall have furnished to Remington an opinion, claims or encumbrances of any nature whatsoever except for (A) those which are being released on xxxed the Closing Date, of Sullivan & Cromwell, New York, New York, in form xxx xxxxtanxx xxxxsfactory to Remington and its counsel to the effect that: (B1) those granted pursuant Desa is a corporation duly organized and validly existing and in good standing under the laws of the State of Delaware with full corporate power and authority to enter into, and carry out the transactions contemplated by, this Agreement, the Product Supply Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Export Sales Agreement; (iv2) This Agreement, the Borrower Product Supply Agreement and the Export Sales Agreement have each been duly authorized, executed and delivered by Desa and each constitutes a legal, valid and binding obligation of Desa in accordance with its terms; (3) The Note has full right to grant been duly and validly authorized and issued and is a security interest legal, valid and binding obligation of Desa in and assign and pledge such Collateral to the Collateral Agentaccordance with its terms; and (v4) upon grant The instruments of assumption whereby Desa has assumed certain obligations and liabilities of Remington to be assumed by the Borrowerit under this Agreement have been duly authorized, Delivery of the Collateral executed and execution of the Account Control Agreementdelivered. E. Desa shall have delivered to Remington such xxxxtional certificates, the Collateral Agent has a first priority (subject to clause (iiinstruments and documents as Remington or its counsel may reasonably request. F. The conditions set forth in Sections 1(B) and 1(G) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender this Article XI shall have reasonably requested; andbeen satisfied.

Conditions Precedent to Closing. Subject (a) Buyer's obligation to Section 3.02, purchase the obligation of the Lenders hereunder Shares shall be subject to satisfaction of all of the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each set forth in form and substance reasonably satisfactory to the Facility Agent:this subparagraph 6.1 (a) (unless expressly waived in writing by it at, or any time prior to, Closing): (i) The representations and warranties of Sellers contained in this Agreement or in any certificate delivered pursuant hereto by or on behalf of Sellers shall have been true and complete when made and shall also be true and complete at and as of the time of Closing (except for changes permitted under Section 4.1 of Article IV). (ii) Seller shall have caused all covenants, agreements and conditions required by this Agreement to be performed or complied with by them prior to or at Closing to be so performed or complied with. (iii) Sellers shall have delivered to Buyer a certificate, signed by each of the Facility Documents duly executed Sellers and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies dated as of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date;, certifying as to the fulfillment of the conditions set forth in clauses (i) and (ii) of this subparagraph 6.1(a). (civ) true No action or proceeding shall have been instituted and complete copies certified remain pending by or before any court or other governmental body or arbitration tribunal seeking, and there shall not be in effect any injunction, order or decree of a Responsible Officer court of competent jurisdiction the effect of which is, (x) to restrain or prohibit or to recover damages in respect of the Borrower transactions contemplated by this Agreement, (y) to revoke or suspend any material license, permit, order or approval, or (z) to question the validity or legality of this Agreement or any action taken or to be taken pursuant hereto or the consummation of the transactions contemplated hereby, and there shall be no such action or proceeding pending which, if adversely determined, would materially and adversely affect, or injunction, order or decree in effect which materially and adversely affects, the business, financial condition and operations of Company. (v) Buyer shall have completed its due diligence investigation of the Company to it's satisfaction. (vi) Except for the lease described on Schedule 2.6, all lessors under leases and parties to agreements of the Company, other than such leases and agreements which do not require consent for the consummation of the transactions contemplated by this Agreement, shall have consented to the consummation of the transactions contemplated hereby. At Closing, Seller shall deliver to Buyer copies of all Governmental Authorizations, Private Authorizations consents referred to in the preceding sentence. (vii) Sellers shall each have furnished Buyer with an opinion of counsel as to the status of the Seller and Governmental Filings the Company and the transactions contemplated by this Agreement substantially in the form of Exhibit "D" in final form as shall be deemed acceptable by Buyer. (other than the UCC financing statements to be filed pursuant to clause (gviii) belowExcept as provided in Schedule 6.1(a)(viii), if anysince December 31, required 1998, there shall not have been any material adverse change in the business, financial condition or operations of Company. (ix) All corporate proceedings in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party all documents and the transactions contemplated therebyinstruments incident thereto, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct shall be reasonably satisfactory in all material respects as of the Closing Date (except in substance and form to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;Buyer. (ex) a certificate of a Responsible Officer of The Employment Agreements shall have been executed by the Collateral Manager certifying (i) as to its Constituent DocumentsSellers, (ii) as to its resolutions approving the Collateral Management Agreement Messrs. Chu, Rickard and the transactions contemplated therebyWinans, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;respectively. (fxi) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control The Non-Competition Agreement shall have been executed by each of Messrs. Chu, Rickard, and Winans, respectively. (xii) Stock certificates representing the Shares shall have been duly endorsed for transfer to Buyer, or accompanied by a proper and duly executed instrument of assignment to Buyer, and shall have all necessary stock transfer stamps attached. (xiii) Resignations shall have been executed by all of the officers and directors. (xiv) The originals (to the extent reasonably available to Seller) or duplicates of all of the minute books, stock books and all other corporate and business records or documents of the Company shall have been delivered by or made available to Buyer; (xv) Either an affidavit that Seller is not a foreign person (as provided in I.R.C. ss.1445(b)(2)) or an affidavit of the BorrowerCompany that complies with I.R.C. ss.1445(b)(3) shall have been properly executed. (xvi) All books and records of the Company shall have been delivered or made available to Buyer at Seller's corporate headquarters. (xvii) At Closing, Seller shall present its management internal accounting of the Collateral Agent balance sheets and working capital of the Company as of the month end just prior to the Closing Date (the "Closing Date Balance Sheet") and management's representation affirming such balance sheet. The Closing Date Balance Sheet shall fairly represent the net worth and working capital of the Company as of the date specified and the Custodian net worth and working capital of Company and shall not be less than as Securities Intermediary reflected on the Financial Statements and shall be in full force and effect;otherwise acceptable to the Buyer. (jxviii) evidence satisfactory Seller shall have executed the Escrow Agreement and shall have pledged the Escrowed Shares pursuant thereto. (xix) Seller shall have and shall have caused the Company to terminate the Shareholder Agreement dated as of March 20, 1996, as amended. (xx) Silicon Valley Bank shall have canceled all warrants to acquire Common Stock of the Company, including that certain Warrant dated November 17, 1998. (xxi) The Sellers shall have caused the Company to terminate the 1997 Stock Option Plan and any related plans prior to the Facility Agent that Closing (the "Plans"). (xxii) All obligations by the Company to pay promissory notes and accrued and unpaid salaries payable to the Sellers (including, but not limited to, those described in the Schedules) have been canceled and have been fully satisfied prior to Closing. (xxiii) Those persons who have been issued options pursuant to the Plans have agreed to cancel all Closing Date Expenses and outstanding fees and expenses of their existing stock options to receive shares of the Collateral Agent Company's common stock or any other securities of any kind. (b) Seller's obligation to close the purchase and sale of the Shares shall be subject to satisfaction of all of the conditions set forth in this subparagraph 6.1 (b) (unless expressly waived in writing by it at, or any time prior to, Closing): (i) The representations and warranties of Buyer contained in this Agreement or in any certificate delivered pursuant hereto by or on behalf of Buyer shall have been paid in full;true and complete when made and shall also be true and complete at and as of the time of Closing. (kii) each of the Eligible Hedge AgreementsBuyer shall have caused all covenants, if any, duly executed agreements and delivered conditions required by the parties thereto, which shall each this Agreement to be in full force and effect;performed or complied with by it prior to or at Closing to be so performed or complied with. (liii) Buyer shall have delivered to Seller a certificate of certificate, signed by its chairman, president or a Responsible Officer of the Borrowervice president, and dated as of the Closing Date, certifying as to the effect that, fulfillment of the conditions sat forth in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: clauses (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement;subparagraph 6.1(b). (iv) There shall not be in effect any injunction, order or decree of a court of competent jurisdiction that prohibits or delays consummation of the Borrower has full right sale of the Shares by Seller and no action or proceeding alleging that the consummation of the sale of the Shares by Seller violates or will violate any federal or state law, rule or regulation shall have been instituted by or before any court or governmental body to grant a security interest restrain or prohibit Seller from selling, or to recover damages from Seller in respect of the sale of the Shares, unless Buyer elects to fully indemnity and assign and pledge such Collateral to the Collateral Agent; anddefend Seller in respect thereof. (v) upon grant Buyer shall have furnished Seller with an opinion of counsel as to the status of Buyer and the transactions contemplated by this Agreement substantially in the Borrowerform of Exhibit "E." (vi) All corporate proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident thereto, Delivery shall be reasonably satisfactory in all material respects in substance and form to Seller. (vii) There has not been any material adverse change in the business, financial condition or operations of the Collateral and execution Buyer. (viii) The Buyer shall have delivered to the Sellers the Buyer Common Stock in payment of the Account Control Purchase Price (excluding the Escrowed Shares which have been pledged pursuant to the Escrow Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and).

Conditions Precedent to Closing. Subject to Section 3.02, The effectiveness of this Agreement (which shall occur on the obligation of the Lenders hereunder shall be Closing Date) is subject to the satisfaction of the following conditions precedent that as of the Facility Agent Closing Date on or before June 1, 2011 (and if the following conditions precedent are not satisfied by such time, this Agreement shall automatically terminate): (a) each Party shall have received, in a form satisfactory to it, opinions from counsel to the other Party covering due authorization, execution and delivery of the Capital Protection Documents by the other Party, in each case in form and substance reasonably satisfactory to such Party; (b) each Party shall have received, in a form satisfactory to it, copies of all Capital Protection Documents duly executed and delivered by the other Party and, where applicable, the Guarantor; (c) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the Custody Agreement duly executed by the Trust and the Custodian; (d) the Capital Protection Provider shall have received an officer’s certificate of the Fund, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Fund and the Secretary or any Assistant Secretary on behalf of the Fund and which certificate shall include (i) the incumbency and signature of the officers of the Fund executing any Capital Protection Document, or before having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents and each Prospectus of the Fund and the Organizational Documents of the Trust, certified as of the Closing Date as complete copies thereof by the followingSecretary or an Assistant Secretary of the Fund or the Trust, as applicable, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of each of the Trust and the Fund (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Fund; (e) the Capital Protection Provider shall have received an officer’s certificate of the Adviser, dated as of the Closing Date, substantially in the form of Exhibit B, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Capital Protection Provider, executed by the President or any Vice President or any Responsible Officer of the Adviser and the Secretary or any Assistant Secretary on behalf of the Adviser and which certificate shall include (i) the incumbency and signature of the officers of the Adviser executing any Capital Protection Document, or having authorization to execute any certificate, notice or other submission required to be delivered to the Agent or the Capital Protection Provider pursuant to this Agreement, (ii) true and complete copies of the Organizational Documents of the Adviser, certified as of the Closing Date as complete copies thereof by the Secretary or an Assistant Secretary of the Adviser, (iii) certificates dated as of a recent date from the Secretary of State or other appropriate authority, evidencing the good standing of the Adviser (x) in the jurisdiction of its organization and (y) in each other jurisdiction where its ownership, lease or operation of property or the conduct of its business requires it to qualify as a foreign Person except, as to this subclause (y), where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect with respect to the Adviser; (f) the Fund shall have received a certificate dated as of the Closing Date, substantially in the form of Exhibit C, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by the Secretary or an Assistant Secretary of the Capital Protection Provider on behalf of the Capital Protection Provider, and which certificate shall include the incumbency and signature of the employees of the Capital Protection Provider authorized to execute on behalf of the Capital Protection Provider any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement; (g) the Fund shall have received, in a form satisfactory to it, a certificate, dated as of the Closing Date, substantially in the form of Exhibit D, with appropriate insertions and attachments, reasonably satisfactory in form and substance to the Fund, executed by a permanent representative of the Guarantor on behalf of the Guarantor, and which certificate shall include the incumbency and signature of the employees of the Guarantor authorized to execute on behalf of the Guarantor any Capital Protection Document to which it is party, or having authorization to execute any certificate, notice or other submission required to be delivered to the Fund pursuant to this Agreement; (h) the Capital Protection Provider shall have received, in a form satisfactory to it, a copy of the resolutions, in form and substance reasonably satisfactory to the Facility Agent: (a) each Capital Protection Provider, of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; Board of Directors (bor analogous body) true and complete copies of the Constituent Documents Fund authorizing the execution, delivery and performance of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Capital Protection Documents to which it is a party party, certified on behalf of the Fund by the Secretary or an Assistant Secretary of the Fund, as of the Closing Date, which certification shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), shall be in form and substance reasonably satisfactory to the transactions contemplated therebyCapital Protection Provider and shall state that the resolutions thereby certified have not been amended, modified, revoked or rescinded; (iiii) the Capital Protection Provider shall have received, in a form satisfactory to it, a certification that its shall be included in the certificate delivered in respect of the Fund pursuant to Section 3.01(d), stating on behalf of the Fund that as of the Closing Date: (i) The representations and warranties set forth contained in the Facility Documents to which it is a party Section 4.01 are true and correct in all material respects on and as of the Closing Date, as though made on and as of the Closing Date; (ii) No Fund Event or Knock-Out Event exists as of the Closing Date; (iii) No licenses, authorizations, consents or approvals as referred to in Section 4.01(n) are required as of the Closing Date or, in the case that such documents are required, that they are required and attaching copies thereof; and (except iv) The Aggregate Protected Amount as of the Closing Date does not exceed the Maximum Settlement Amount; (j) the Fund shall have arranged with the Custodian for the Capital Protection Provider and the Agent to directly receive the extent such applicable reports and information contained in Schedule II; (k) the representations and warranties expressly relate to any earlier datemade by the Fund and Capital Protection Provider, respectively, contained in which case such representations and warranties ARTICLE 4 shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred on and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effectDate; (l) each Party shall have received, in a certificate of a Responsible Officer form satisfactory to it, all corporate and other proceedings, and all documents, instruments and other legal matters reasonably requested by such Party evidencing or confirming the accuracy of the Borrower, dated as representations and warranties made by the other parties hereunder or the authority of such other parties to enter into this Agreement or the Closing Date, other Capital Protection Document to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date:which they are party; and (m) (i) the Borrower is registration statement of the owner of such Collateral free Fund shall have been filed with the Commission and clear of any liensbecome effective, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice investment policies and objectives of any adverse claim, except the Fund as described in clause (i) above; the Prospectus contained in such registration statement and the description of the Capital Protection Provider and the Capital Protection Agreement in such Prospectus shall, in each case, be reasonably satisfactory to the Agent, and (iii) the Borrower has not assigned, pledged or otherwise encumbered Agent shall have determined in its interest in reasonable discretion that any modifications to such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant Prospectus from the draft most recently filed with the Commission prior to the date of this Agreement do not materially change the rights of the Capital Protection Provider under, or the terms of, this Agreement. Upon receipt the satisfaction of all documentary conditions precedent and its reasonable satisfaction that all non-documentary conditions precedent have been satisfied on or before June 1, 2011, each of the Fund and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest Capital Protection Provider will confirm in and assign and pledge such Collateral writing to the Collateral Agentother that the conditions precedent have been satisfied, and upon such written confirmation thereof from the Fund and the Capital Protection Provider on or before June 1, 2011, the Closing Date shall occur; and (v) upon grant by provided, that such confirmation shall not constitute a waiver of any non-documentary condition that was not satisfied, and the Borrower, Delivery non-defaulting Party shall be entitled to exercise any rights it may have hereunder or under applicable Law arising out of the Collateral and execution failure of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; andcondition.

Conditions Precedent to Closing. Subject to Section 3.02The obligations of each Venturer under this Agreement shall, the obligation of the Lenders hereunder shall at its option, be subject to the conditions precedent that the Facility Agent shall have received satisfaction, on or before prior to the Closing Date Date, of the following, each in form and substance reasonably satisfactory to the Facility Agentfollowing conditions: (a) There shall have been no material breach by any Venturer in the performance of any of its covenants and agreements herein; each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties other Venturer shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of on the Closing Date (as though made on the Closing Date, except for changes therein specifically permitted by this Agreement or resulting from any transaction expressly consented to in writing by the other Venturer and except that any representation or warranty made as of a specified date pursuant to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties express terms of this Agreement shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement there shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) other Venturer a certificate of a Responsible Officer of the Borroweror certificates to such effect, dated as of the Closing Date, signed on behalf of the other Venturer by the President or other senior officer of such other Venturer. (b) No action, suit or proceeding shall have been instituted or threatened to restrain or prohibit or otherwise challenge the effect thatlegality or validity of the transactions contemplated hereby. (c) The parties shall have received all governmental regulatory approvals, in if any, necessary to consummate the case of each item of Collateral pledged transactions contemplated hereby which are required to the Collateral Agent, be obtained on the Closing Date and immediately or prior to the delivery thereof on Closing by applicable law or regulations. (d) UWIC and HCSC shall have obtained commitments for excess reinsurance agreements that are reasonably acceptable to the Closing Date:parties. (e) The Company and UWIC shall have executed the Underwriting Management Agreement. (f) On or prior to the tenth business day after the execution of this Agreement, the parties shall have executed a Stock Purchase Commitment pursuant the terms and conditions of which; (i) United Wisconsin Services, Inc. shall purchase from HCSC 50% of the Borrower is Common Stock (the owner "Purchased Stock") of such Collateral free Third Coast Holding Company (including its subsidiaries) (collectively "Third Coast") and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on contribute the Closing Date, (B) those granted pursuant Purchased Stock to this Agreement and the Account Control Agreement and (C) Permitted Liens;Company. (ii) HCSC shall contribute the Borrower has acquired its ownership in such Collateral in good faith without notice remaining 50% of any adverse claim, except as described in clause (i) above;the Common Stock of Third Coast to the Company. (iii) United Wisconsin Services, Inc. shall pay for the Borrower has Purchased Stock with Common or Preferred stock of United Wisconsin Services, Inc., notes of United Wisconsin Services, Inc., cash, or any combination thereof at UWS's option, having a value equal to 50% of the adjusted book value of Third Coast as determined by an independent appraiser satisfactory to both parties; provided that the parties shall use their best efforts to cause Third Coast to be able to pay to HCSC, prior to the Closing of the purchase and sale of the Purchased Stock, the surplus notes owed by Third Coast to HCSC for the Purchased Stock. In the event that the parties do not assignedagree to a Stock Purchase Commitment on or before the tenth business day after the execution of this Agreement, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to either party may terminate this Agreement and neither party shall have any liability to the Account Control Agreement;other party with respect to the transactions described herein. In connection with the Stock Purchase Commitment, the parties shall negotiate in good faith to amend Article 3 of this Agreement to have HCSC receive the economic effect of a ceding of 50% of the Company's business written after the closing of the Stock Purchase Commitment. (ivg) Third Coast and the Borrower has full right to grant a security interest in and assign and pledge such Collateral Company shall have executed an Administrative Services Agreement relating to the Collateral Agent; andadministration of claims on policies written by Third Coast prior to the closing of the transactions contemplated by Section 6.2(f) hereof. (vh) upon grant The Company, HCSC and UWS shall have agreed on a business plan and cash flow projection relating to the Company. (i) UWS shall have received approval of this Agreement by its Board of Directors. (j) UWS shall have received an unqualified opinion of tax counsel of UWS's choice that the Borrower, Delivery consummation of the Collateral transactions contemplated by this Agreement will not, either by itself or in combination with any other transaction, cause the spin-off of UWS's managed care and execution specialty businesses from its small group businesses to be taxable in whole or in part to UWS, American Medical Security Group, Inc. ("AMSG") or the shareholders of UWS or AMSG. Each Venturer agrees to notify the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest other Venturer promptly in the Collateral; (m) event such other opinions, instruments, certificates and documents from the Borrower as the Agents or Venturer determines that it is unlikely that any Lender shall have reasonably requested; andcondition set forth in this Section 4.2 will not be satisfied prior to Closing.

Conditions Precedent to Closing. Subject SECTION 7.1. Conditions to Section 3.02, the obligation Company's Obligations. The obligations of the Lenders Company hereunder required to be performed at the Closing shall be subject subject, at its election, to the conditions precedent that the Facility Agent satisfaction or waiver (which waiver, if so requested by Proha, shall have received on be made in writing), at or before the Closing Date the following, each in form and substance reasonably satisfactory prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of Proha contained in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties this Agreement shall be true and correct in all material respects on and as of the Closing Date, as if such representation or warranty was made as of the Closing, except to the extent that any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such earlier specified date), . (ivb) no Default or Event of Default has occurred Proha shall have performed in all material respects all obligations and is continuingagreements, and complied in all material respects with all covenants, contained in this Agreement and the other Documents, to be performed and complied with by Proha at or prior to the Closing Date. (vc) All material governmental and regulatory approvals and clearances and all third-party consents necessary for the consummation of the transactions contemplated by the Documents to occur on the Closing Date shall have been obtained and shall be in full force and effect, the Company shall reasonably be satisfied that the consummation of such transactions does not and will not contravene any Applicable Law, except to the extent any contravention or contraventions, individually or in the aggregate, could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (d) Proha shall have delivered to the Company a certificate, executed by Proha or on its behalf by a duly authorized representative, dated as of the Closing Date, certifying that each of the conditions specified in this Section 7.1 has been satisfied with respect to Proha. (e) All Documents, instruments, agreements and arrangements relating to the transactions contemplated by the Documents shall be reasonably satisfactory to the Company, shall have been executed and delivered by the parties thereto be in full force and effect and no party to any of the foregoing (other than the Company) shall have breached any of its material obligations thereunder. (f) There shall be no litigation, proceeding or other action seeking an injunction or other restraining order, damages or other relief from a Governmental Authority pending or threatened which, in the reasonable judgment of the Company, would materially adversely affect the consummation of the transactions contemplated by the Documents on the terms contemplated hereby and thereby and there shall be no litigation, proceeding or other action (including, without limitation, relating to environmental matters or the Artemis Employee Benefit Plans) pending or threatened against the Artemis Entities which could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (g) The Company shall have received stock certificates (to the extent certificated) representing the Exchanged Shares as set forth hereunder. (h) Proha shall have delivered to the Company certificates of the appropriate public officials, if available, to the effect that each of Proha and each Artemis Entity is a validly existing corporation in good standing (to the extent that the concept of good standing is recognized under the laws of the relevant jurisdiction of organization) in its jurisdiction of organization dated not more than five (5) days prior to the Closing Date. (i) Proha shall have delivered to the Company a certificate of the Secretary of its Board of Directors (i) certifying that a true and correct copy of the Charter and Bylaws of the Artemis Entities and all resolutions of the Board of Directors of Proha authorizing the execution and delivery of this Agreement and each Document to which Proha is a party and authorizing the performance by Proha of the transactions contemplated hereby and thereby is attached thereto and (ii) containing the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate officers of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect;Proha. (j) evidence satisfactory Proha's stockholders shall have elected Proha Nominees and the Other Nominees to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses Board of Directors of Proha, subject to the completion of the Collateral Agent have been paid in full;transactions contemplated herein. (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which The Company shall each be in full force and effect;have received Stockholder Approval. (l) a certificate of a Responsible Officer The reorganization of the Borrower, dated as of the Closing Date, to the effect that, Artemis Entities decribed in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender Section 6.9 shall have reasonably requested; andoccurred.

Conditions Precedent to Closing. Subject to Section 3.02, 7.1. Conditions for the obligation benefit of [COMPANY NAME] 7.1.1. [FIRST PARTY NAME] shall have performed or complied with all of the Lenders hereunder covenants contained in this Agreement to be performed or complied with by [FIRST PARTY NAME] at or prior to the Closing Time; 7.1.2. [SECOND PARTY NAME] shall have completed its due diligence review of the Seller, [COMPANY NAME] and the Subsidiaries in accordance with Section 7.3 hereof and be satisfied with the results thereof. The representations, warranties, covenants and agreements set forth in this Agreement shall survive the closing notwithstanding any examination made by or on behalf of [SECOND PARTY NAME] or any knowledge of any of its agents or the acceptance by [SECOND PARTY NAME] of any certificate; 7.1.3. the Shareholders, other than [FIRST PARTY NAME], shall have executed an agreement with [SECOND PARTY NAME] and [FIRST PARTY NAME] undertaking to sell their Shares to [SECOND PARTY NAME] upon the terms and conditions herein contained; 7.1.4. the indebtedness of [COMPANY NAME] to [FIRST PARTY NAME] in the amount of [AMOUNT], as well as any other indebtedness owing to [COMPANY NAME] by any director, officer or shareholder of [COMPANY NAME] or any of the Subsidiaries or owing by [COMPANY NAME] to any such Person, shall be subject reimbursed in full, including without limitation as to principal, interest, fees and penalties (if any), at or before the conditions precedent that Closing; 0.0.0. xx action or proceeding in [COUNTRY] will be pending or threatened by any person or Governmental Agency to enjoin, restrict or prohibit the Facility Agent sale and purchase of the Shares contemplated hereby; 7.1.6. all consents, approvals, Orders and authorizations of any Person or Governmental Authorities (or registrations, declarations, filings or recordings with any of them), required for the Closing (other than routine post closing notifications or filings), shall have received been obtained or made on or before the Closing Date the following, each in form and substance reasonably satisfactory Time; 0.0.0. xx material adverse change shall have occurred since [DATE] with respect to the Facility Agent: (a) each Condition of the Facility Documents duly executed Business and delivered by the parties thereto, which [SECOND PARTY NAME] shall each be in full force and effecthave received immediately prior to Closing a certificate from a senior officer of [FIRST PARTY NAME] certifying that this condition has been satisfied; (b) true and complete copies 0.0.0. xx court order shall have been entered that prohibits or restricts the Closing. None of the Constituent Documents Parties (including [SECOND PARTY NAME]), nor any of their respective directors, officers, employees or agents, shall be a defendant or third party to or threatened with any litigation or proceedings before any court or Governmental Authority which, in the opinion of [SECOND PARTY NAME], acting reasonably, could prevent or restrict that party from performing any of its obligations in any Closing Document; 7.1.9. all documentation relating to the sale and purchase of the Borrower, the Fund, and the Collateral Manager as in effect on Shares including the Closing Date; (c) true Documents relating to the due authorization and complete copies certified by a Responsible Officer completion of such sale and purchase and all actions and proceedings taken on or prior to the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required Closing in connection with the performance by [FIRST PARTY NAME] of its obligations under this Agreement shall be satisfactory to [SECOND PARTY NAME] and its counsel, acting reasonably, and [SECOND PARTY NAME] shall have received copies of the Closing Documents and all such documentation or other evidence as it may reasonably request in order to establish the consummation of the transactions contemplated by this Agreementhereby and the taking of all corporate proceedings in connection therewith in form (as to certification and otherwise) and substance satisfactory to [SECOND PARTY NAME] and its counsel; (d) a certificate 7.1.10. at the Closing Time, all directors and officers of a Responsible Officer [COMPANY NAME] and each of the Borrower certifying Subsidiaries shall submit a resignation from all positions with [COMPANY NAME] and each of the Subsidiaries, and a release by each of them as well as [FIRST PARTY NAME] of all claims against [COMPANY NAME] and each of the Subsidiaries up to the Closing Time except for (i) as current unpaid remuneration and advances made to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its representations and warranties set forth in the Facility Documents to which it is a party are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) a certificate of a Responsible Officer of the Borrower, dated as of the Closing Date, to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on the Closing Date: (i) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for (A) those which are being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens; (ii) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (i) above; (iii) the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; [COMPANY NAME] and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral; (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; and

Conditions Precedent to Closing. Subject 7.1 Conditions to Section 3.02, the obligation Company's Obligations. --------------------------------------- The obligations of the Lenders Company with respect to a Purchaser hereunder required to be performed on the Closing Date shall be subject to the conditions precedent that the Facility Agent shall have received on satisfaction or before the Closing Date the followingwaiver, each in form and substance reasonably satisfactory at or prior to the Facility AgentClosing, of the following conditions: (a) each of the Facility Documents duly executed and delivered by the parties thereto, which shall each be in full force and effect; (b) true and complete copies of the Constituent Documents of the Borrower, the Fund, and the Collateral Manager as in effect on the Closing Date; (c) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings (other than the UCC financing statements to be filed pursuant to clause (g) below), if any, required in connection with the transactions contemplated by this Agreement; (d) a certificate of a Responsible Officer of the Borrower certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its board of directors or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated thereby, (iii) that its The representations and warranties set forth of such Purchaser contained in the Facility Documents to which it is a party are this Agreement shall have been true and correct when made and, in addition, shall be repeated and true and correct in all material respects on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except b) Such Purchaser shall have performed in all material respects all obligations and agreements, and complied in all material respects with all covenants contained in this Agreement to be performed and complied with by such Purchaser at or prior to the extent Closing Date. (c) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated. (d) The Company shall have obtained all necessary consents, waivers, authorizations and approvals of all Governmental Authorities and of all other Persons required in connection with the execution, delivery and performance of the Equity Documents or the consummation of the Issuance, such waivers to be satisfactory in form and substance to the Company. (e) Such Purchaser shall have entered into the Registration Rights Agreement. (f) The Shares to be purchased at the Closing shall be issued for an aggregate amount of no less than $600,000,000.00. 7.2 Conditions to Each Purchaser's Obligations. ------------------------------------------ The obligations of a Purchaser hereunder required to be performed on the Closing Date shall be subject to the satisfaction or waiver, at or prior to the Closing, of the following conditions: (a) The representations and warranties expressly relate to any earlier date, of the Company contained in which this Agreement (i) shall have been true and correct when made and (ii) shall be (A) in the case such of representations and warranties shall be that are qualified as to materiality or Material Adverse Effect, true and correct and (B) in all other cases, true and correct in all material respects as respects, in the case of such earlier dateclauses (A) and (B), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party; (e) a certificate of a Responsible Officer of the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date with the same force and effect as though made on and as of the Closing Date. (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties b) The Company shall be true and correct have performed in all material respects as all of such earlier date), (iv) no Default its obligations and agreements and complied in all material respects with all covenants contained in this Agreement to be performed and complied with at or Event of Default has occurred and is continuing, and (v) as prior to the incumbency Closing Date. (c) The Company shall have entered into the Registration Rights Agreement. (d) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware. (e) Any applicable waiting period under the HSR Act with respect to the purchase by such Purchaser shall have expired or been terminated and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;no litigation arising therefrom shall have been commenced and remain outstanding. (f) proper financing statements, under the UCC in all jurisdictions that the Facility Agent deems necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement; (g) copies of proper financing statements, if any, necessary to release all security interests and other rights of any Person in the Collateral previously granted by the Borrower or any predecessor in interest (including any transferor); (h) legal opinions (addressed to each of the Secured Parties) of (i) Xxxxxxxx & Xxxxxxxx LLP, counsel to the Borrower and the Collateral Manager as to corporate, securities, bankruptcy and commercial law and (ii) Xxxxx Peabody LLP, counsel to the Collateral Agent, covering such matters as the Facility Agent and its counsel shall reasonably request; (i) evidence satisfactory to the Facility Agent that all of the Covered Accounts are in existence; and the Account Control Agreement The Company shall have been executed and delivered by the Borrower, the Collateral Agent and the Custodian as Securities Intermediary and shall be in full force and effect; (j) evidence satisfactory to the Facility Agent that all Closing Date Expenses and outstanding fees and expenses of the Collateral Agent have been paid in full; (k) each of the Eligible Hedge Agreements, if any, duly executed and delivered by the parties thereto, which shall each be in full force and effect; (l) such Purchaser a certificate of executed on its behalf by a Responsible Officer of the Borrowerduly authorized representative, dated as of the Closing Date, to the effect thatthat each of the conditions specified in paragraph (a) through (e) of this Section 7.2 has been satisfied. (g) No provision of any Applicable Law, injunction, order or decree of any Governmental Entity shall be in effect which has the effect of making the Transactions illegal or shall otherwise restrain or prohibit the consummation of the Transactions. (h) Such Purchaser shall have received an opinion of (i) H. Xxx Xxxxxx, General Counsel of the Company and (ii) X'Xxxxxxxx Graev & Karabell, LLP, special counsel to the Company, in the each case of each item of Collateral pledged to the Collateral Agent, on the Closing Date and immediately prior to the delivery thereof on dated the Closing Date:, and addressed to such Purchaser, covering the matters set forth in Exhibit D, in form and substance reasonably acceptable to the Purchaser. (i) Such Purchaser shall have received certificates representing the Borrower is Securities purchased by such Purchaser concurrently with the owner Company's receipt of the Purchase Price for such Collateral free and clear of Securities. (j) There shall not have occurred (i) any liensevent, claims circumstance, condition, fact, effect or encumbrances of any nature whatsoever except for other matter which has had or could reasonably be expected to have a material adverse effect (Ax) those which are being released on the Closing Datebusiness, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole or (By) those granted pursuant on the ability of the Company and its Subsidiaries to perform on a timely basis any material obligation under this Agreement and or the Account Control Agreement and (C) Permitted Liens; other Equity Documents or to consummate the Issuance contemplated hereby; or (ii) the Borrower has acquired its ownership any material disruption of or material adverse change in such Collateral financial, banking or capital market conditions. (k) The Share Exchange Agreement shall be in good faith without notice full force and effect and there shall not have been any amendment or waiver of any adverse claim, except as described in clause (i) above;of its material terms or conditions. (iiil) The Company shall have delivered duly executed copies of the Borrower has not assigned, pledged or otherwise encumbered its interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than interests granted pursuant to this Agreement and the Account Control Agreement; (iv) the Borrower has full right to grant a security interest in and assign and pledge such Collateral Management Rights Agreements to the Collateral Agent; and (v) upon grant by the Borrower, Delivery of the Collateral and execution of the Account Control Agreement, the Collateral Agent has a first priority (subject to clause (ii) of the definition of Permitted Liens) perfected security interest in the Collateral;HMTF Funds. (m) such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender The Company shall have reasonably requested; andmade all filings with, given all notices to, and received all approvals from, all Governmental Authorities (including, without limitation, the Federal Communications Commission and state public utility commissions) required in connection with the consummation of the Transactions, unless the failure to make such filings, give such notices or receive such approvals would not, individually or in the aggregate, have a Material Adverse Effect or a material adverse effect on the ability of the Company to consummate the Transactions.