Common use of Conditions Precedent to the Loan Clause in Contracts

Conditions Precedent to the Loan. The obligation of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of the following conditions, unless waived in writing by the Lender: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunder.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund Loan on the Certificate of Deposit shall be Closing Date is subject to the fulfillment, to the satisfaction of the Lender, of all of the following conditions, unless waived conditions precedent in writing by addition to the Lender: conditions specified in Article II: (a) all legal matters Borrower shall have executed and all Transaction Documents incident delivered to the transactions contemplated hereby shall be reasonably satisfactoryLender the Note, in form and substance, to Lender's counsel; dated the Closing Date. (b) the Lender shall have received on or before the Closing Date an executed copy of: (i) certificates by a certificate of Borrower, dated the Closing Date, substantially in the form set forth in Exhibit L hereto together with the attachments specified therein; (ii) an authorized officer or representative opinion of Xxxxxxx Xxxxxx Xxxxxx & Dodge LLP, counsel to Borrower, dated the Closing Date, substantially in the form of Exhibit M hereto and otherwise in form and substance satisfactory to the Lender; (iii) an opinion of Xxxx Xxxxxxxxxx, counsel of Borrower upon which , dated the Lender may conclusively rely until superseded by similar certificates Closing Date, substantially in the form of Exhibit N hereto and otherwise in form and substance satisfactory to the Lender. (iv) an opinion of Xxxxxx, Xxxxx & Anasasi, LLP, counsel of Borrower, dated the Closing Date, substantially in the form of Exhibit O hereto and in form and substance satisfactory to the Lender. (c) Borrower shall have delivered to the LenderLender a certificate, certifying that dated the Closing Date, of a Senior Officer of Borrower (1the statements made in which shall be true and correct on and as of the Closing Date): (i) attaching copies, certified by such officer as true and complete, of Borrower’s certificate of incorporation or other organizational documents (together with any and all requisite action taken in connection with amendments thereto) certified by the appropriate Governmental Authority as being true, correct and complete copies; (ii) attaching copies, certified by such officer as true and complete, of resolutions of the Board of Directors of Borrower authorizing and approving the execution, delivery and performance by Borrower of this Agreement, the other Transaction Documents and the transactions contemplated hereby has been duly authorized herein and therein; (iii) setting forth the incumbency of the officer or officers of Borrower who have executed and delivered this Agreement and the other Transaction Documents including therein a signature specimen of each such officer or officers; and (2iv) attaching copies, certified by such officer as true and complete, of certificates of the namesappropriate Governmental Authority of the jurisdiction of formation, signatures, stating that Borrower is in good standing under the laws of such jurisdiction. (d) Borrower shall have executed and authority of Borrower’s authorized signers executing delivered to the Lender the Loan Documents, Documents and (ii) such other documents as the Lender may reasonably require request, in each case, in form and substance satisfactory to the Lender. (e) Borrower shall have executed and delivered to the Lender the Warrant Agreement. (f) The Transaction Documents shall be executed by, or delivered on behalf of, Borrower; in full force and effect. (cg) the The Lender shall have received all fees and expenses due and payable to the Note with all blanks appropriately completedLender on the Closing Date under this Agreement and the other Transaction Documents. (h) No event shall have occurred and be continuing that constitutes a Default or an Event of Default under this Agreement or a similar event under the other Transaction Documents and no such event will occur or will have occurred by reason of the Loan. (i) The representations and warranties made by Borrower in Article VIII hereof and in the other Transaction Documents shall be true and correct as of the Closing Date, executed by an authorized signer for Borrower; before and after giving effect to the Loan. (dj) Borrower shall have maintained its financial condition delivered to the Lender true copies of the License Agreements certified by an officer of Borrower, including all amendments, supplements or other modifications thereto, and each License Agreement and amendment, supplement or other modification thereto shall be in full force and effect. (k) All filings, recordings and other actions that are necessary or reasonably requested by the Lender in order to establish, protect, preserve and perfect the security interest in the assets of Borrower as provided in the Security Agreement as a manner valid and perfected first priority security interest with respect to such assets shall have been duly effected. (l) All necessary governmental and third-party approvals, consents and filings, including in connection with the Loan, the Security Agreement and the Warrant Agreement shall have been obtained or made and be in full force and effect. (m) The Lender shall have conducted a background check of the officers of Borrower and the results shall be to the satisfaction of the Lender. The Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act, including, without limitation, the information described in Section 13.19. (n) The Lender shall have received from Borrower (i) an executed copy of the Release of Security Agreement between Borrower and Xxxx Royalty Funds Holdings II, (ii) evidence to the satisfaction of the Lender that such release(s) in form and substance satisfactory to the Lender will be filed with the U.S. Patent and Trademark Office and the U.S. Copyright Office on the Closing Date, (it being understood iii) evidence to the satisfaction of the Lender that Borrower has ceased operations, is currently without funds other than a UCC-3 termination statement will be filed with the Loan and that office of the Loan will not, unless Secretary of State of the transactions contemplated by State of Delaware on the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims)Closing Date, and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (fiv) evidence to the satisfaction of the Lender of agreements to terminate (A) the Financing Statement shall be assigned of record to the Lender; lockbox agreement among Xxxx Royalty Funds Holdings II, Borrower and XX Xxxxxx Chase Bank, and (gB) the Lender shall have received written instructions from the Borrower escrow arrangement with respect to disbursement duplicate libraries for the benefit of the proceeds of the Loan then disbursable hereunderXxxx Royalty Funds Holdings II.

Conditions Precedent to the Loan. The obligation (a) As a condition precedent to the borrowing of the Loan hereunder, the Lender must receive the following from the Borrower in form reasonably satisfactory to disburse the Initial Advance Lender and, except for items (i) and (ii) below, dated as of the date of the borrowing of the Loan (it being agreed that the forms delivered to fund the Administrative Agent under the Incorporated Agreement, with such changes as are appropriate to refer to this Agreement, are satisfactory to the Lender): (i) this Agreement duly executed and delivered on behalf of the Borrower; (ii) if requested by the Lender at least two Business Days prior to the borrowing of the Loan, a promissory note as contemplated in Paragraph 1(d) above; (iii) a certificate signed by any Authorized Officer or Secretary or Assistant Secretary of the Borrower stating that as of the date of the borrowing of the Loan no Event of Default or Potential Default shall exist and that the representations and warranties contained in Paragraph 3 of this Agreement are true and correct on such date (including, without limitation, those incorporated herein); (iv) copies of the Certificate of Deposit Incorporation of the Borrower, together with all amendments, certified by any Authorized Officer or the Secretary or Assistant Secretary of the Borrower, and a certificate of good standing, certified on or within ten days prior to the date hereof by the Secretary of State of Delaware; (v) copies, certified by any Authorized Officer or the Secretary or Assistant Secretary of the Borrower, of its By-Laws and its Board of Directors’ resolutions, authorizing the execution, delivery and performance of the this Agreement and the Loan Documents; (vi) an incumbency certificate, executed by any Authorized Officer or the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signature of the officers of the Borrower authorized to sign the Loan Documents and to sign any other documents and notices in connection with this Agreement and to make borrowings under this Agreement (on which the Lender shall be subject entitled to satisfaction rely until informed of the following conditions, unless waived any change in writing by the Lender: Borrower); (avii) all legal matters and all Transaction Documents incident to a written opinion of the transactions contemplated hereby shall be reasonably satisfactoryBorrower’s counsel, in form and substanceJones Day, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered addressed to the Lender, certifying that ; (1viii) a notice of borrowing (in the form of Exhibit C hereto); (ix) each representation and warranty set forth or referred to in Section 3 below shall be true and correct in all requisite action taken in connection with material respects as if made on the transactions contemplated hereby has been duly authorized and date of such borrowing; and (2x) the names, signatures, and authority no Default or Event of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change Default shall have occurred in Borrower’s financial condition or prospects; (f) and be continuing on the Financing Statement shall be assigned date of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereundersuch borrowing.

Conditions Precedent to the Loan. The obligation of the Lender Lenders to disburse Advance the Initial Loan on the Advance and to fund the Certificate of Deposit shall be Date is subject to satisfaction the fulfillment of the following conditions, unless waived in writing by the Lender: conditions precedent: (a) all legal matters the Agent shall have received copies of the Borrower's, each Group Company's, DP Holdings' and all Transaction DP's Charter Documents incident and of the resolutions of the Borrower's trustees and the directors of SPB and SPH approving the execution, delivery and performance of the Credit Documents to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; which each is a party; (b) the Lender Agent shall have received a certificate of a senior officer of the Borrower certifying the names and true signatures of the officers and directors thereof authorized to sign the Credit Documents to which it is a party; (c) the Agent shall have received certificates of good standing or like certificates issued by the appropriate Official Body of the jurisdiction of incorporation or formation of the Borrower and each Group Company; (d) the Credit Documents, the Fee Letter and the Engagement Letter shall have been executed and delivered to the Agent, the Security shall have been created, and all deliveries, registrations, filings or recordings necessary or desirable to preserve, protect or perfect the security interest and the enforceability and priority of the Security shall have been completed, all in such form, content and manner as is satisfactory to the Agent, other than notification of the pledge of the Pledged Securities to the companies whose securities are set out in Schedule "B" hereto; (e) the Agent shall have received copies certified by a senior officer of the Borrower of the Financial Statements of the Borrower for its most recently completed Financial Year and Financial Quarter; (f) all of the representations and warranties contained in the Credit Documents to which the Borrower is a party shall be correct on and as of the Advance Date as though made on and as of such date and the Borrower shall have delivered a Borrower's Certificate to the Agent to such effect on or before the Advance Date; (g) the Agent shall have received a certificate of the Borrower certifying that: (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered all conditions precedent to the Lender, certifying initial draw down of the first advance under the ZSG Project Finance Loan Agreement shall have been satisfied or waived other than the provision of the Xxxxxx Equity Financing and any such conditions precedent that (1) all requisite action taken in connection with are to be completed after the transactions contemplated hereby has been duly authorized and (2) provision of the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and Xxxxxx Equity Financing; (ii) all conditions precedent to the advance of the Xxxxxxx Loan shall have been satisfied or waived; and (iii) arrangements reasonably satisfactory to the Agent to facilitate the completion of the Xxxxxx Equity Financing shall be in place; (h) the Agent shall have received a copy of the Xxxxxxx Loan Agreement and shall be satisfied with the terms thereof, acting reasonably; (i) the Agent shall have received a favorable opinion of counsel to the Borrower (in form and content satisfactory to the Agent) as to such matters as the Agent may reasonably request, including the corporate status of the Borrower, the corporate power and capacity of the Borrower to borrow money and to grant security therefor and the due authorization, execution and delivery of the Credit Documents to which it is a party and the enforceability of this Agreement; (j) all fees and all expenses required to be paid or reimbursed to the Agent and the Lenders on the Advance Date shall have been paid; (k) the Agent shall have received a copy of the Shareholders Agreement Heads of Terms in the form set out as Schedule "D" to this Agreement duly executed by the Borrower; and (l) the Agent shall have received such other documents as the Lender it may reasonably require to be executed by, or delivered request for and on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderLenders.

Conditions Precedent to the Loan. The obligation of the Lender Lenders to disburse advance the Initial Advance and to fund the Certificate of Deposit Loans shall be subject to satisfaction fulfillment of the following conditions, unless waived in writing by conditions precedent on or prior to the Lender: Closing Date: (a) all legal matters and all Transaction Documents incident The Borrower shall have delivered to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; Agent the Pay Proceeds Letter; (b) the Each Lender shall have received its applicable Note duly executed by the Borrower; (c) The Agent shall have received the following documents in form and substance satisfactory to the Agent: (i) certificates This Agreement duly executed by an authorized officer the Borrower; (ii) The Security Agreement duly executed by the Borrower together with a memorandum of the Security Agreement to be filed with the United States Surface Transportation Board (“STB”) and the Office of the Registrar General of Canada (“Registrar General”) together with evidence of such filings (and the favorable opinions of Xxxxxx & Xxxxxx, special Surface Transportation Board counsel to the Borrower, and XxXxxxxx Xxxxxxxx LLP, special Canadian counsel to the Borrower); (iii) The Pledge Agreement duly executed by The Andersons; (iv) The Servicing Agreement duly executed by the Borrower and The Andersons; (v) The Management Agreement duly executed by the Borrower and The Andersons; (vi) The Lockbox Agreement duly executed by the Borrower and Fifth Third Bank; (vii) The Collection Account Blocked Account Agreement duly executed by the Borrower and Fifth Third Bank; (viii) The Cash Collateral Blocked Account Agreement duly executed by the Borrower and Fifth Third Bank; (ix) A certificate of insurance naming the Agent as additional insured and loss payee for the benefit of the Lenders, which satisfies the requirement of Section 4.2 of the Security Agreement; (x) A certificate substantially in the form of Exhibit C, duly executed by the secretary or representative assistant secretary of the Borrower upon and Servicer; (xi) Results of a recent lien search in each of the STB and each of the jurisdictions in which Uniform Commercial Code financing statements or other filings or recordations should be made to evidence or perfect security interests in the Lender may conclusively rely until superseded by similar certificates Collateral, and such search shall reveal no liens on any of the Collateral or any of the assets of the Borrower (except for the liens described in Section 5.1(e)(ii)); (xii) A favorable opinion dated the Closing Date and addressed to the Lenders of each of: (A) in-house counsel to the Borrower; (B) Xxxxxx & Xxxxxx, special Surface Transportation Board counsel to the Borrower and (C) XxXxxxxx Xxxxxxxx LLP, special Canadian counsel to the Borrower and (D) Xxxxxxx and Xxxxxx LLP, special counsel to the Borrower; (xiii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and Agent as secured party, covering the Collateral, (ii) naming The Andersons, as debtor and the Agent, as secured party, covering the Pledged Collateral and, in each case to be filed and recorded with the office of the Secretary of State of the State of Delaware; (xiv) Evidence reasonably satisfactory to the Agent that a notice of the assignment of each Equipment Lease to the Borrower has been delivered to each Equipment Lessee thereunder; (xv) Evidence reasonably satisfactory to the LenderAgent that an amount equal to the Reserve Amount is on deposit in the Cash Collateral Account; (xvi) An undated, certifying that signed Notice of Assignment with respect to each of the Equipment Leases, in substantially the form of Exhibit D; (1xvii) A copy of each of (i) the Transfer Documents, (ii) the Management Agreement, (iii) Servicing Agreement and the (iv) Car Xxxx Agreement, each certified by a Responsible Officer of the Borrower as true, correct and complete; (xviii) an Appraisal as to the Fair Market Value of the Equipment, such Appraisal being based on a desktop review of the Equipment signed by a third party appraiser acceptable to the Agent; and (xix) Good standing certificates of each of the Borrower, the Manager and the Servicer, certified by the respective states of formation or incorporation, as the case may be, all requisite action taken as reasonably acceptable to the Agent. (d) The Borrower shall have made arrangements reasonably satisfactory to the Agent to pay for all filing fees and expenses incurred in connection with the transactions contemplated hereby has been duly authorized filing of the Security Agreement with the United States Surface Transportation Board and (2) the names, signaturesOffice of the Registrar General of Canada, and authority the UCC Financing Statements (as described above in 3.1(c)(viii) with the Secretary of Borrower’s authorized signers executing the Loan Documents, and State of the State of Delaware. (iie) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) The Borrower shall have maintained its financial condition in a manner satisfactory paid to the Lender Agent its agreed upon fees due on the Closing Date (it being understood that Borrower has ceased operations, is currently without funds other than such fee or a portion thereof (x) may be paid directly from the Loan proceeds and that the Loan will not, unless the transactions contemplated (y) may be paid by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claimsAgent to the Lenders), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; . (f) Except as specified on Schedule B hereto, the Financing Statement Borrower shall be assigned of record have delivered to the Lender; and (g) the Lender shall have received written instructions from the Borrower Agent with respect to disbursement each Equipment Lease (a) the chattel paper original of such Equipment Lease and (b) certified copies of each of the proceeds of the Loan then disbursable hereunderother Equipment Lease Documents.

Conditions Precedent to the Loan. The obligation 2.1 Lender shall not be obligated to make the Loan unless, prior to the advancement of any funds by Lender, Borrower has delivered to Lender the Lender to disburse duly executed documents, certificates and other instruments required herein, including, without limitation the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of the following conditions, unless waived in writing by the Lender: following: (a) all legal matters this Agreement; (b) the Note; (c) the Security Agreement (which must be in form and all Transaction Documents incident substance satisfactory to Lender) and such Uniform Commercial Code financing statements and other documents as Lender may require in connection therewith; (d) the Confirmation of Blanket Assignment (which must be in form and substance satisfactory to Lender) and such Uniform Commercial Code financing statements and other documents as Lender may require in connection therewith; (e) A Notice of Assignment and a Blanket Lessee Acknowledgment (which must be in form and substance satisfactory to Lender), evidencing the acknowledgement of the interests of Lender in every lease of any item of Equipment and such other documents as Lender may require in connection therewith; (f) the Consent of Guarantors (which must be in form and substance satisfactory to Lender), duly executed by each of the Guarantors; (g) Certified copies of the Articles of Incorporation and ByLaws or other organizational documents forming or creating Borrower and each Guarantor; (h) Certifications from the Tennessee Secretary(ies) of State that Borrower and each Guarantor is in existence and is in good standing in the State of Tennessee; (i) Certified copies of resolutions, certificates of authority or similar authorization documents from Borrower's board of directors approving the Loan; (j) Original incumbency certificates certifying as to the transactions contemplated hereby shall be reasonably satisfactoryofficers of Borrower and each Guarantor authorized to sign the Loan Documents on behalf of Borrower and each Guarantor, respectively; (k) an opinion of counsel of the Xxxxxxx Law Firm, outside counsel to Borrower and the Guarantors, in form and substance, substance satisfactory to Lender and Lender's counsel; ; (bl) A list of all Equipment, including year, make, model, state of titling/registration and all leases involving the Equipment certified as true, correct and complete by Borrower; (m) the Borrowing Notice (which must be in form and substance satisfactory to Lender); and (n) evidence of the proper filing of UCC-1 Financing Statements evidencing first priority security interests in favor of Lender shall have received in all of the Collateral and all of the Third Party Collateral; (io) certificates by an authorized officer or representative a Termination of Security Interest (which must be in form and substance satisfactory to Lender) and UCC-3 Termination Statements for all UCC-1 Financing Statements filed of record against Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered relating to the Collateral; (p) Evidence satisfactory to Lender of the insurance required by this Agreement and the other Loan Documents together with loss payable endorsements in form and substance satisfactory to Lender, certifying that duly executed by the insurance company; (1q) Copies of all requisite action taken in connection with financial statements and other Exhibits and Schedules required by this Agreement and the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the other Loan Documents, and ; (iir) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all A letter of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions direction from the Borrower with respect to the disbursement of the proceeds of the Loan; (s) A pay-off letter from Wachovia Bank N.A. in form and substance satisfactory to Lender; (t) A UCC search from the Tennessee Secretary(ies) of State or other evidence satisfactory to Lender to demonstrate that Lender will have a first lien on the Collateral; and (u) Such other agreements, documents, instruments and certificates as Lender may reasonably request. Any one or more of the conditions set forth above which have not been satisfied by Borrower on or prior to the date of disbursement of the Loan then disbursable hereunderhereunder shall not be deemed permanently waived by Lender unless Lender shall waive the same in a writing which expressly states that the waiver is permanent, and in all cases in which the waiver is not stated to be permanent Lender may at any time subsequent to the date specified in the waiver, if any, insist upon compliance and satisfaction of any such condition and failure to Borrower to comply with any such condition on or before shall constitute a Default under this Agreement.

Conditions Precedent to the Loan. The obligation of the Lender Lenders to disburse Advance the Initial Loan on the Advance and to fund the Certificate of Deposit shall be Date is subject to satisfaction the fulfillment of the following conditions, unless waived in writing by the Lender: conditions precedent: (a) all legal matters the Agent shall have received copies of the Borrower's, each Group Company's, DP Holdings' and all Transaction DP's Charter Documents incident and of the resolutions of the Borrower's trustees and the directors of each of SPB and SPH approving the execution, delivery and performance of the Credit Documents to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; which each is a party; (b) the Lender Agent shall have received a certificate of a senior officer of the Borrower certifying the names and true signatures of the officers and directors thereof authorized to sign the Credit Documents to which it is a party; (c) the Agent shall have received certificates of good standing or like certificates issued by the appropriate Official Body of the jurisdiction of incorporation or formation of the Borrower and each Group Company; (d) the Credit Documents and the Financial Services Agreement shall have been executed and delivered to the Agent, the Security shall have been created, and all deliveries, registrations, filings or recordings necessary or desirable to preserve, protect or perfect the security interest and the enforceability and priority of the Security shall have been completed, all in such form, content and manner as is satisfactory to the Agent, other than notifications of the pledge of the Pledged Securities to the companies whose securities are set out in Schedule "B" hereto; (e) the Agent shall have received copies certified by a senior officer of the Borrower of the Financial Statements of the Borrower for its most recently completed Financial Year and Financial Quarter; (f) all of the representations and warranties contained in the Credit Documents to which the Borrower is a party shall be correct on and as of the Advance Date as though made on and as of such date and the Borrower shall have delivered a Borrower's Certificate to the Agent to such effect on or before the Advance Date; (g) the Agent shall have received a certificate of the Borrower certifying that: (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered all conditions precedent to the Lender, certifying initial draw down of the first advance under the ZSG Project Finance Loan Agreement shall have been satisfied or waived other than the provision of the Xxxxxx Equity Financing and any such conditions precedent that (1) all requisite action taken in connection with are to be completed after the transactions contemplated hereby has been duly authorized and (2) provision of the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and Xxxxxx Equity Financing; (ii) all conditions precedent to the Advance of the MFC Loan shall have been satisfied or waived; and (iii) arrangements reasonably satisfactory to the Agent to facilitate the completion of the Xxxxxx Equity Financing shall be in place; (h) the Agent shall have received a copy of the MFC Loan Agreement and shall be satisfied with the terms thereof, acting reasonably; (i) the Agent shall have received a favorable opinion of counsel to the Borrower (in form and content satisfactory to the Agent) as to such matters as the Agent may reasonably request, including the corporate status of the Borrower, the corporate power and capacity of the Borrower to borrow money and to grant security therefor and the due authorization, execution and delivery of the Credit Documents to which it is a party and the enforceability of this Agreement; (j) all fees and all expenses required to be paid or reimbursed to the Agent and the Lenders on the Advance Date shall have been paid; (k) the Agent shall have received a copy of the Shareholders Agreement Heads of Terms in the form set out as Schedule "E" to this Agreement duly executed by the Borrower; and (l) the Agent shall have received such other documents as the Lender it may reasonably require to be executed by, or delivered request for and on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderLenders.

Conditions Precedent to the Loan. The obligation As conditions precedent -------------------------------- to Lender's making of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of Loan, the following conditions, unless waived in writing by shall occur prior to or at the Lender: Closing: (a) all legal matters the Borrower shall have duly and all Transaction Documents incident validly issued, executed and delivered the Note to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; ; (b) the Lender Borrower shall have received delivered the Initial Consideration Shares to the Lender free of any and all Liens and restrictive legends (other than restrictions on transfer imposed by applicable securities laws and restrictive legends making reference thereto). (c) the Borrower shall have effected the appointment or election of one Lender-designated person to the Borrower's Board of Directors; (d) the Borrower shall have made the following additional deliveries to the Lender: (i) certificates by an authorized officer or representative of existence and good standing of the Borrower upon in the State of Nevada, and certificates of qualification as a foreign corporation and good standing in the State of Colorado; (ii) a certificate of the Borrower's Secretary certifying (A) the Borrower's charter and bylaws, (B) duly adopted resolutions of the Borrower's board of directors in form and substance satisfactory to the Lender with respect to the authorization of this Agreement, the Note and the Other Transaction Documents to which the Borrower is a party and (C) specimen signatures of the duly authorized officers of the Borrower executing this Agreement or any Other Transaction Document on the Borrower's behalf; (iii) a legal opinion of counsel to the Borrower and the Shareholders addressed to the Lender may conclusively rely until superseded by similar certificates delivered in form and substance satisfactory to the Lender; (iv) duly-executed originals (in such number as the Lender reasonably shall request) of the Registration Rights Agreement; and (v) duly-executed originals (in such number as the Lender reasonably shall request) of written evidence satisfactory in form and substance to the Lender that the Borrower and the Shareholder (as such term is defined in the Unifiber Shareholder Agreement) have agreed that no approval by the Borrower's Board of Directors pursuant to Section 3(a)(2) of the Unifiber Shareholder Agreement shall be required upon the Lender's purchase, certifying that if any, of the Shares (1as such term is defined in the Unifiber Shareholder Agreement) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and subsequent to such assignment; and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (iivi) such other documents and things as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; shall request. (ce) the Lender Xxxxxxxxxxx shall have received delivered one or more certificates representing the Note Xxxxxxxxxxx Collateral Shares free of any and all Liens and restrictive legends (other than restrictions on transfer imposed by applicable securities laws and restrictive legends making reference thereto), together with all blanks appropriately completed, executed by an authorized signer for Borrower; one or more irrevocable stock power duly endorsed in blank; (df) Borrower Xxxxxxxxxxx shall have maintained its financial condition in a manner satisfactory delivered to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than in such number as the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change Lender reasonably shall have occurred in Borrower’s financial condition or prospects; (frequest) the Financing Statement shall be assigned of record UCC-1 financing statements relating to the Lender; Xxxxxxxxxxx Security Agreement and the pledge of the Xxxxxxxxxxx Collateral Shares; (g) Xxxxxxxxxxx and the Borrower shall have delivered to each other duly-executed originals (in such number as the Lender reasonably shall request) of the Xxxxxxxxxxx Security Agreement; (h) Xxxxxx shall have received written instructions from delivered one or more certificates representing the Xxxxxx Collateral Shares free of any and all Liens and restrictive legends (other than restrictions on transfer imposed by applicable securities laws and restrictive legends making reference thereto), together with one or more irrevocable stock power duly endorsed in blank; (i) Xxxxxx shall have delivered to the Lender (in such number as the Lender reasonably shall request) UCC-1 financing statements relating to the Xxxxxx Security Agreement and the pledge of the Xxxxxx Collateral Shares; and (j) Xxxxxx and the Borrower with respect shall have delivered to disbursement each other duly- executed originals (in such number as the Lender reasonably shall request) of the proceeds of the Loan then disbursable hereunderXxxxxx Security Agreement.

Conditions Precedent to the Loan. The obligation of Lenders shall not be required to make the Lender Loan hereunder unless the Credit Parties have furnished to disburse the Initial Advance Agent with sufficient copies for the Lenders the following documents and to fund the Certificate of Deposit shall be subject to satisfaction of satisfied (or such condition has been waived) the following conditions, unless waived as applicable, in each case to Agent's reasonable satisfaction: (i) Copies of the articles or certificate of incorporation of each Credit Party, together with all amendments, and a certificate of good standing (provided that such good standing certificate for xXxxxxx.xxx, Inc. shall be delivered to the Agent within 30 days of the Closing Date) and, if reasonably requested by Agent, a certificate or certificates of qualification to do business as a foreign corporation, each certified by the appropriate governmental officer in its jurisdiction of incorporation or other applicable jurisdiction. (ii) Copies certified by the Secretary or Assistant Secretary of the applicable Credit Party, of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which such Credit Party is a party. (iii) An incumbency certificate or certificates, executed by the Secretary or Assistant Secretary of each Credit Party, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of each Credit Party authorized to sign the Loan Documents to which such Credit Party is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Lender: Credit Party. (aiv) all legal matters A certificate, signed by the chief financial officer of the Borrower, stating that on the Borrowing Date no Default or Unmatured Default has occurred and all Transaction Documents incident is continuing. (v) A written opinion of (i) Xxxxxxxx & Xxxxx, the Borrower's counsel, (ii) McAfee & Xxxx, special aviation counsel to the transactions contemplated hereby shall be reasonably satisfactoryAgent, and (iii) Vedder, Price, Xxxxxxx & Kammholz, special counsel to the Borrower and the Credit Parties, in each case addressed to the Lenders in form and substancesubstance reasonably acceptable to Agent. (vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender. (vii) Written money transfer instructions, in substantially the form of Exhibit B, addressed to Lender's counsel; (b) the Lender shall have received (i) certificates Agent and signed by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the LenderAuthorized Officer, certifying that (1) all requisite action taken in connection together with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents related money transfer authorizations as the Lender Agent may have reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderrequested.

Conditions Precedent to the Loan. The obligation of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction Each of the following conditions, unless waived in writing by is a condition precedent to Agent and Lenders making the Lender: Loan: (a) Agent shall have received a copy of the Confirmation Order as duly entered by the Bankruptcy Court and entered on the docket of the Clerk of the Bankruptcy Court in the Chapter 11 Case certified by the Clerk of the Bankruptcy Court, following due notice to such creditors and other parties-in-interest as required by the Bankruptcy Court, which order shall include such provisions with respect to the Credit Facility as are reasonably satisfactory to Agent and, providing, among other things, that Borrowers shall be authorized to (i) enter into this Agreement, the other Financing Agreements and the Working Capital Loan Documents, (ii) grant the liens and security interests and incur or guaranty the Indebtedness under this Agreement, the other Financing Agreements and the Working Capital Loan Documents, and (iii) issue, execute and deliver all legal matters documents, agreements and instruments necessary or appropriate to implement and effectuate all obligations under this Agreement, the other Financing Agreements and the Working Capital Loan Documents and to take all other actions necessary to implement and effectuate borrowings under this Agreement, the other Financing Agreements and the Working Capital Loan Documents. Without limiting the generality of the foregoing, Agents shall be satisfied (i) with the terms and conditions (including, without limitation, lien and debt subordination provisions, payment terms, interest rates, covenants, remedies, defaults and other material terms) of the New Notes to be issued by Parent; provided, that the New Notes shall (A) have a maturity date not earlier than 7 years following the effective date of the Chapter 11 Plan, (B) bear non-default interest at a cash-pay rate of interest of not exceeding 10% per annum, (C) have no amortization due thereunder until the maturity date thereof, and (D) be secured by third priority liens on substantially all of the assets of the Borrowers, which liens securing the New Notes, and the Indebtedness thereunder, shall be subordinated to the Obligations and the Working Capital Loan Debt pursuant to the New Note Intercreditor Agreement, which shall be in form and substance satisfactory to Agent and Working Capital Loan Agent in Agent's and Working Capital Loan Agent's sole but reasonable discretion, and (ii) that the issuance to the holders of the New Notes of equity interests in the reorganized Borrowers is limited to common stock, but shall consist of substantially all of such common stock, subject to stock options with respect to such common stock to be issued to Borrowers' management pursuant to Borrowers' 2004 Stock Option Plan; (b) Agent shall have received evidence, satisfactory to Agent, that prior to the date hereof or concurrently herewith, (i) the Effective Date shall have occurred, the Confirmation Order shall be valid, subsisting and continuing as a Final Order and all Transaction Documents incident conditions precedent to the effectiveness of the Chapter 11 Plan shall have been fulfilled, or validly waived, including, without limitation, the execution, delivery and performance of all of the conditions thereof other than conditions that have been validly waived (but not including conditions consisting of the effectiveness of this Agreement), and (ii) no motion, action or proceeding shall be pending or filed by any creditor or other party-in-interest to the Chapter 11 Case which could adversely affect the Chapter 11 Plan, the consummation of the Chapter 11 Plan, the business or operations of Borrowers or the transactions contemplated hereby by the Financing Agreements and the Working Capital Loan Documents, as determined by Agent in good faith; (c) Agent and Working Capital Agent shall each be reasonably satisfactorysatisfied with the application of "fresh start" accounting rules to Borrowers after the Effective Date of the Chapter 11 Plan. (d) Agent shall have received, in form and substancesubstance satisfactory to Agent, all releases, terminations and such other documents as Agent may request to Lender's counselevidence and effectuate the termination by the Existing Lenders of their respective financing arrangements with Borrowers and Guarantors and the termination and release by Existing Lenders, and by any other Person holding a security interest or lien that is not permitted by Section 9.8, of any interest in and to any assets and properties of each Borrower and Guarantor, duly authorized, executed and delivered by each of them (or by their agent), including, but not limited to, (i) UCC termination statements for all UCC financing statements previously filed by it or any of them or their predecessors, as secured party and any Borrower or Guarantor, as debtor; and (bii) satisfactions and discharges of any mortgages, deeds of trust or deeds to secure debt by any Borrower or Guarantor in favor of it or any of them, in form acceptable for recording with the Lender appropriate Governmental Authority; (e) all requisite corporate action and proceedings in connection with this Agreement and the other Financing Agreements shall be reasonably satisfactory in form and substance to Agent, and Agent shall have received all information and copies of all documents, including certificates of incorporation or formation, by-laws, operating agreement or other applicable governing documents and records of requisite corporate action and proceedings which Agent may have reasonably requested in connection therewith, such documents where requested by Agent or its counsel to be certified by appropriate corporate officers or Governmental Authority (and including a copy of the certificate of incorporation of each Borrower and Guarantor certified by the Secretary of State (or equivalent Governmental Authority) which shall set forth the same complete corporate name of such Borrower or Guarantor as is set forth herein and such document as shall set forth the organizational identification number of each Borrower or Guarantor, if one is issued in its jurisdiction of incorporation); (f) no Material Adverse Effect shall have occurred since August 25, 2004; (g) Agent shall have received from Working Capital Agent the results of its field review of the Borrowers' Records and such other information with respect to the Collateral as Working Capital Loan Agent may require, the results of which, (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered shall have been obtained not more than seven (7) days prior to the Lenderdate hereof or within such other longer time period as Agent shall elect in good faith, certifying that (1ii) shall not reflect any material adverse changes from the results of Working Capital Agent's latest field examinations and (iii) shall be satisfactory to Agent; (h) Agent shall have received, in form and substance satisfactory to Agent, all requisite action taken consents, waivers, acknowledgments and other agreements from third persons which Agent may deem necessary in order to permit, protect and perfect its security interests in and liens upon the Collateral and to effectuate the provisions or purposes of this Agreement and the other Financing Agreements, including, without limitation, Collateral Access Agreements executed by owners and lessors of leased premises of Borrowers and by processors, warehouse owners and other bailees at which any Collateral is located; (i) the Excess Availability as determined by Working Capital Agent, as of the Closing Date, shall be not less than $20,000,000 after giving effect to (i) the Loan to be made in connection with the transactions contemplated hereby has been duly authorized and (2) the nameshereunder, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents the initial Working Capital Loans made or to be made and Letter of Credit Accommodations (as defined in the Working Capital Loan Agreement) issued or to be issued, and all fees and expenses to be paid in connection with the consummation of the Chapter 11 Plan and the initial transactions hereunder and under the Working Capital Loan Agreement; (j) Agent shall have received, in form and substance reasonably satisfactory to Agent, Deposit Account Control Agreements by and among Agent, Working Capital Loan Agent, each Borrower and Guarantor, as the Lender case may reasonably require to be and each bank where such Borrower (or Guarantor) has a deposit account (other than as provided in Section 5.2(d) hereof), in each case, duly authorized, executed byand delivered by such bank and Borrower or Guarantor, or delivered on behalf of, Borrower; as the case may be; (ck) the Lender Agent shall have received the Note with all blanks appropriately completedevidence, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner form and substance reasonably satisfactory to the Lender (it being understood Agent, that Borrower Agent has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy a valid perfected security interest in all of Borrower’s known creditors’ claimsthe Collateral (excluding motor vehicles currently owned by Borrowers), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record subject only to the Lender; and prior liens of Working Capital Agent; (gl) the Lender Agent shall have received written instructions from and reviewed lien and judgment search results for the jurisdiction of organization of each Borrower and Guarantor, the jurisdiction of the chief executive office of each Borrower and Guarantor and all jurisdictions in which assets of Borrowers and Guarantors are located, which search results shall be in form and substance satisfactory to Agent; (m) Agent shall have received, in form and substance satisfactory to Agent, a valid and effective title insurance policy issued by a company and agent acceptable to Agent: (i) insuring the priority and amount of the Mortgages, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage reasonably requested by Agent in accordance with its customary practices for protection of its interests; (n) Agent shall have received copies of the shares of the stock certificates representing all of the issued and outstanding shares of the Capital Stock of each Borrower and Guarantor (other than Parent) and owned by any Borrower or Guarantor (limited, however, to 65% of issued and outstanding shares of the Capital Stock of each first-tier subsidiary of Borrowers and Guarantors that is incorporated outside of the United States of America), in each case together with copies of stock powers duly executed in blank with respect thereto, and Agent shall have received evidence satisfactory to Agent that the originals of such stock certificates and stock powers have been delivered to the Working Capital Agent; (o) Agent shall have received evidence of insurance and loss payee endorsements required hereunder and under the other Financing Agreements, in form and substance satisfactory to Agent, and certificates of insurance policies and/or endorsements naming Agent as loss payee as its interests may appear, as applicable; (p) Agent shall have received, in form and substance satisfactory to Agent, such opinion letters of counsel to Borrowers and Guarantors with respect to disbursement of the proceeds of Financing Agreements and such other matters as Agent may reasonably request; (q) the Loan then disbursable hereunder.other Financing Agreements and all instruments and documents hereunder and thereunder shall have been duly executed and delivered to Agent, in form and substance reasonably satisfactory to Agent;

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and Loan to fund the Certificate of Deposit shall be made by it hereunder is subject to the satisfaction or the waiver by the Lender of the following conditions, unless waived in writing by the Lender: conditions precedent: (a) The Lender shall have received: (i) this Agreement, duly executed and delivered by an authorized officer of the Borrower; and (ii) the Note, duly executed and delivered by an authorized officer of the Borrower. (b) The Lender shall have received: (i) audited consolidated financial statements of the Borrower for the two most recent fiscal years ended prior to the Closing Date as filed with the SEC; (ii) unaudited interim consolidated financial statements of the Borrower as filed with the SEC for each fiscal quarter ended after the date of the latest applicable financial statements delivered pursuant to clause (i) of this Section 4.1(b) as to which such financial statements are available, and such financial statements shall not, in the reasonable judgment of the Lender, reflect any material adverse change in the consolidated financial condition of the Borrower, as reflected in the audited consolidated financial statements described in clause (i) of this Section 4.1(b); and (iii) copies of all legal matters correspondence with the SEC since April 6, 2015 relating to any investigation or possible or proposed enforcement action against the Borrower or any of its Affiliates. (c) All governmental and third party approvals necessary in connection with the Borrower’s consummation of the transaction contemplated hereby shall have been obtained and be in full force and effect, and all Transaction applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby. (d) The Lender shall have received the Origination Fee, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date. All such amounts will be paid with proceeds of the Loan made on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Lender on or before the Closing Date. (e) Except as disclosed to Lender on Schedule 4.01(f), there shall have occurred no Material Adverse Effect since June 30, 2015. (f) The Lender shall have received, in form and substance satisfactory to it, a certificate of the Borrower, certified by a secretary of the Borrower, dated the Closing Date, including: (i) the articles of incorporation of the Borrower certified by the relevant authority of the jurisdiction of organization of the Borrower; (ii) the code of regulations of the Borrower as in effect on the date on which the resolutions referred to below were adopted; (iii) resolutions of the board of directors of the Borrower approving the transaction and the Loan Documents; (iv) a certification that the names and signatures of the officers of the Borrower authorized to sign the Loan Documents and other documents to be delivered hereunder and thereunder are true and correct; and (v) a good standing certificate for the Borrower from its jurisdiction of organization. (g) The Lender shall have received the legal opinion of Kxxxxxx Jxxxxxx & Kxxxxx LLP, counsel to the Borrower and its Subsidiaries covering such matters incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents this Agreement as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderrequire.

Conditions Precedent to the Loan. The obligation As conditions precedent to Lender's making of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of Loan, the following conditions, unless waived in writing by shall occur prior to or at the Lender: Closing: (a) all legal matters the Borrower shall have duly and all Transaction Documents incident validly issued, executed and delivered the Note and the Warrant to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; ; (b) the Borrower shall have paid to Davix X. Xxxx x xinder's fee of CDN$52,200.00 (US$37,500.00) in the form of 350,000 Shares issued to him at a deemed price of CDN$0.15 per Share; (c) the Borrower shall have effected the appointment or election of one Lender-designated person to the Borrower's Board of Directors; (d) the Borrower shall have entered into a three-year employment agreement with Willxxx X. Xxxxxx xx terms and conditions acceptable to the Lender; (e) the Borrower shall have consummated the Private Placement on terms and conditions acceptable to the Lender; (f) the Borrower shall have terminated the Shareholder Protection Rights Plan; (g) Hectxx Xxxxxxxxx xxx Camuri Holding LLP shall have entered into an agreement not to reduce their respective holdings of Shares on terms and conditions acceptable to the Lender; (h) the Borrower shall have paid in full the Expenses specified in Section 4.11(a) and (b) in cash by wire transfer of such funds to such account as the Lender shall have received designated; (i) certificates the Borrower shall have repaid in full all amounts owing under the Existing TOSI Xxxn in cash by an authorized officer or representative wire transfer of Borrower upon which such funds to such account as the Lender may conclusively rely until superseded by similar certificates delivered shall have designated; and (j) the Borrower shall have made the following additional deliveries to the Lender: (i) to the extent that the Province of Alberta issues such documents or their respective analogues, certificates of existence and good standing of the Borrower in the Province of Alberta; (ii) a certificate of the Secretary or Assistant Secretary of the Borrower certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2A) the namesBorrower's charter and bylaws, signatures(B) duly adopted resolutions of the Borrower's board of directors in form and substance satisfactory to the Lender with respect to the authorization of this Agreement, the Note, the Warrant and the Ancillary Documents to which the Borrower is a party, and authority the officers of Borrower’s the Borrower authorized signers executing the Loan Documentsto sign such instruments, and (iiC) specimen signatures of the officers so authorized; (iii) a certificate of the Secretary or Assistant Secretary of each Subsidiary that is guaranteeing the Loan certifying (A) such Subsidiary's charter and bylaws, (B) duly adopted resolutions of such Subsidiary's board of directors in form and substance satisfactory to the Lender with respect to the authorization of the Ancillary Documents to which such Subsidiary is a party, and the officers of such Subsidiary authorized to sign such instruments, and (C) specimen signatures of the officers so authorized; (iv) a legal opinion of the Borrower's legal counsel addressed to the Lender in form and substance satisfactory to the Lender; (v) duly-executed originals (in such number as the Lender reasonably shall request) of the Registration Rights Agreement; and (vi) such other documents and things as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; shall request in writing at least three (c3) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory days prior to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderClosing.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund Loan on the Certificate of Deposit shall be Closing Date is subject to the fulfillment, to the satisfaction of the Lender, of all of the following conditions, unless waived conditions precedent in writing by addition to the Lender: conditions specified in Article II: (a) all legal matters The Borrower shall have executed and all Transaction Documents incident delivered to the transactions contemplated hereby Lender the Note, dated the Closing Date. (b) The Lender shall be reasonably satisfactoryhave received on or before the Closing Date an executed copy of: (i) a certificate of the Borrower, dated the Closing Date, substantially in the form set forth in Exhibit D-1 hereto together with the attachments specified therein; (ii) a certificate of XOMA, dated the Closing Date, substantially in the form set forth in Exhibit D-2 hereto together with the attachments specified therein; (iii) a certificate of XOMA Bermuda, dated the Closing Date, substantially in the form set forth in Exhibit D-3 hereto together with the attachments specified therein; (iv) an opinion of Xxxxxxx Xxxx & Xxxxxxx, special Bermuda counsel to XOMA and XOMA Bermuda, dated the Closing Date, in form and substancesubstance satisfactory to the Lender; (v) an opinion of Xxxxxx Xxxxxx & Xxxxxxx LLP, U.S. counsel to the XOMA Parties, dated the Closing Date, in form and substance satisfactory to the Lender's counsel; (vi) an opinion of Xxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of XOMA, dated the Closing Date, in form and substance satisfactory to the Lender; and (bvii) an opinion of Xxxx Xxxxxxx, Senior Director of Intellectual Property of XOMA, dated the Lender Closing Date, in form and substance satisfactory to the Lender. (c) The Borrower shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that Lender certified true copies of the Borrower Documents. (1d) all requisite action taken in connection with The Borrower shall have executed and delivered to the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing Lender the Loan Documents, Documents and (ii) such other documents as the Lender may reasonably require request, in each case, in form and substance satisfactory to the Lender. (e) The Borrower and XOMA Bermuda shall have executed and delivered to the Lender the Acquisition Agreement in the form set forth in Exhibit I. (f) The Transaction Documents shall be executed by, or delivered on behalf of, Borrower; in full force and effect. (cg) the The Lender shall have received the Note with upfront structuring fee set forth in Section 2.05 and all blanks appropriately completedother fees and expenses due and payable to the Lender on the Closing Date under this Agreement and the other Transaction Documents. (h) The organizational structure and capital structure of the Borrower shall be to the satisfaction of the Lender. (i) No event shall have occurred and be continuing that constitutes a Default or an Event of Default under this Agreement or a similar event under the other Transaction Documents and no such event will occur or will have occurred by reason of the Loan. (j) The representations and warranties made by the Borrower in Article VIII hereof and in the other Transaction Documents shall be true and correct as of the Closing Date, executed by an authorized signer for Borrower; before and after giving effect to the Loan. (dk) The Borrower shall have maintained its financial condition in a manner satisfactory delivered to the Lender certified true copies of the License Agreements, including all amendments, supplements or other modifications thereto, and each License Agreement and amendment, supplement or other modification thereto shall be in full force and effect. (it being understood l) All filings, recordings and other actions that are necessary or reasonably requested by the Lender in order to establish, protect, preserve and perfect the security interest in the assets of the Borrower has ceased operationsas provided in the Security Agreement as a valid and perfected first priority security interest with respect to such assets shall have been duly effected. (m) All necessary governmental and third-party approvals, is currently without funds other than consents and filings, including in connection with the Loan and that the Loan will not, unless acquisition of the transactions contemplated Payment Rights by the Asset Purchase Borrower pursuant to the Acquisition Agreement are consummated, satisfy all shall have been obtained or made and be in full force and effect. (n) The acquisition by the Borrower and the assignment by XOMA Bermuda of Borrower’s known creditors’ claims)the Payment Rights shall have been consummated pursuant to the Acquisition Agreement, and no material adverse change provision thereof shall have occurred been waived, amended, supplemented or otherwise modified in Borrower’s financial condition or prospects; connection with such acquisition without the written consent of the Lender. (fo) The Lender shall have conducted a background check of the Financing Statement officers of the XOMA Parties and the results shall be assigned of record to the satisfaction of the Lender; . (p) The Borrower and the Obligors shall have executed and the Borrower shall have delivered the Required Consents. (gq) the The Lender shall have received written instructions from the Borrower with respect to disbursement (i) an executed copy of the proceeds Release of Security Agreement in Patents between XOMA and Genentech, (ii) evidence to the satisfaction of the Loan then disbursable hereunderLender that such release was filed with the U.S. Patent and Trademark Office and (iii) evidence to the satisfaction of the Lender that a UCC-3 termination statement was filed with the office of the Secretary of State of the State of Delaware.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund the Certificate of Deposit shall be Loan hereunder is subject to satisfaction the condition precedent that Lender shall have received, on or before the Closing Date (unless otherwise indicated), all of the following conditionsfollowing, each dated (unless waived in writing by otherwise indicated) as of the Lender: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactoryClosing Date, in form and substancesubstance satisfactory to Lender in its sole discretion: (a) the Note, to Lender's counsel; properly executed on behalf of Borrower; (b) each of the Lender shall have received other Loan Documents, properly executed on behalf of Borrower or Guarantor, as the case may be; (ic) certificates copies of the Memorandum of Association and Articles of Association of Borrower, certified by an authorized officer or representative of Borrower upon as being true and correct copies thereof; (d) copies of the Articles of Incorporation of Guarantor and Charterer, respectively, certified by an authorized officer of Guarantor or Charterer, as applicable, as being true and correct copies thereof; (e) a signed copy of a certificate of an authorized officer of Borrower, which shall certify the names of the officers of Borrower authorized to execute and deliver this Agreement and the other Loan Documents, and other documents or certificates to be delivered pursuant to the Loan Documents by Borrower or any of Borrower's officers, together with the true signatures of such officers. Lender may conclusively rely on such certificate until superseded by similar Lender shall receive a further certificate of an authorized officer of Borrower canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate; (f) signed copies of a certificate of authorized officers of each of Guarantor and Charterer, respectively, which shall certify the names of the officers of Guarantor or Charterer, as applicable, authorized to execute and deliver the Guaranty or the Charter Agreement, as applicable, or any other documents or certificates delivered to which may be required under this Agreement or any of the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the other Loan Documents, together with the true signatures of such officers. Lender is hereby authorized to conclusively rely on such certificate until Lender shall receive a further certificate of an authorized officer of Guarantor or Charterer canceling or amending the prior certificate and submitting the signature of the officers named in such further certificate. (g) opinions of counsel to the Borrower covering various matters of law with respect to (i) the State of Illinois, (ii) such other documents as the Lender may reasonably require to be executed byCayman Islands, or delivered on behalf ofBritish West Indies, Borrower; and (ciii) the Lender Republic of Vanuatu, which opinions shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition be in a manner form and substance reasonably satisfactory to Lender. (h) copies of the Lender (it being understood that respective corporate resolutions of Borrower has ceased operations, is currently without funds other than and Guarantor authorizing and approving the Loan and that the execution and delivery of the applicable Loan will notDocuments, unless the transactions contemplated certified by the Asset Purchase Agreement are consummatedrespective Secretary of Borrower and Guarantor as being a true and correct copy thereof; (i) a copy of the corporate resolution of Charterer authorizing the execution and delivery of the Charter, satisfy all of Borrower’s known creditors’ claims), the Acknowledgment and no material adverse change shall have occurred in Borrower’s financial condition or prospects; any other documents related thereto; (fj) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower a good standing certificate with respect to Borrower, issued as of a recent date by the Secretary of State or other appropriate and authorized official of Borrower's respective jurisdiction of incorporation; (k) Guaranty Agreement executed by Guarantor, with the Guarantor providing a full and unconditional Guaranty of all Obligations of Borrower under this Agreement and the Note, which shall guaranty the Obligations on a joint and several basis; (l) an opinion of counsel to Guarantor, which opinion shall be in form and substance reasonably satisfactory to Lender; (m) an opinion of counsel to Charterer, which opinion shall be in form and substance reasonably satisfactory to Lender; (n) duly executed and filed Security Documents establishing in Lender, as determined by Lender's counsel, to be received by Lender prior to the disbursement of any Loan proceeds; it being agreed that Lender is under no obligation to disburse any proceeds until it receives satisfactory evidence of its first preferred mortgage position on the proceeds Vessel; (o) evidence that all insurance policies required under any of the Loan then disbursable hereunderDocuments and all other documents which may be required thereunder, are in full force and effect; (p) all accrued and unpaid fees and expenses payable hereunder or pursuant to the terms hereof; (q) evidence satisfactory to Lender regarding ownership and documentation of the Vessel and confirming that all licenses have been obtained by Borrower and are in full force and effect to operate the Vessel according to their intended use. (r) such other documents, certification, acknowledgments or opinions of counsel or other experts respecting the Loan Documents as Lender shall reasonably request.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund Loan on the Certificate of Deposit shall be Closing Date is subject to the fulfillment, to the satisfaction of the Lender, of all of the following conditions, unless waived conditions precedent in writing by addition to the Lender: conditions specified in Article II: (a) all legal matters The Borrower shall have executed and all Transaction Documents incident delivered to the transactions contemplated hereby Lender the Note, dated the Closing Date. (b) The Lender shall be reasonably satisfactoryhave received on or before the Closing Date an executed copy of: (i) a certificate of the Borrower, dated the Closing Date, substantially in the form set forth in Exhibit D-1 hereto together with the attachments specified therein; (ii) a certificate of XOMA, dated the Closing Date, substantially in the form set forth in Exhibit D-2 hereto together with the attachments specified therein; (iii) an opinion of Cxxxxxx Dxxx & Pxxxxxx, special Bermuda counsel to XOMA and XOMA Bermuda, dated the Closing Date, in form and substancesubstance satisfactory to the Lender; (iv) an opinion of Cxxxxx Xxxxxx & Rxxxxxx LLP, U.S. counsel to the XOMA Parties, dated the Closing Date, in form and substance satisfactory to the Lender's counsel; (v) an opinion of Cxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of XOMA, dated the Closing Date, in form and substance satisfactory to the Lender; and (bvi) an opinion of Axxx Xxxxxxx, Senior Director of Intellectual Property of XOMA, dated the Lender Closing Date, in form and substance satisfactory to the Lender. (c) The Borrower shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that Lender certified true copies of the Borrower Documents. (1d) all requisite action taken in connection with The Borrower shall have executed and delivered to the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing Lender the Loan Documents, Documents (including the amendment to the Security Agreement the form of which is at- tached hereto as Exhibit C) and (ii) such other documents as the Lender may reasonably require request, in each case, in form and substance satisfactory to the Lender. (e) XOMA Bermuda shall have executed and delivered to the Lender the representation letter in the form set forth in Exhibit I (the “XOMA Bermuda Representation Letter”). (f) The Transaction Documents shall be executed by, or delivered on behalf of, Borrower; in full force and effect. (cg) the The Lender shall have received the Note with upfront underwriting fee set forth in Section 2.05 and all blanks appropriately completedother fees and expenses due and payable to the Lender on the Closing Date under this Agreement and the other Transaction Documents. (h) The organizational structure and capital structure of the Borrower shall be to the satisfaction of the Lender. (i) No event shall have occurred and be continuing that constitutes a Default or an Event of Default under this Agreement or a similar event under the other Transaction Documents and no such event will occur or will have occurred by reason of the Loan. (j) The representations and warranties made by the Borrower in Article VIII hereof and in the other Transaction Documents shall be true and correct as of the Closing Date, executed by an authorized signer for Borrower; before and after giving effect to the Loan. (dk) The Borrower shall have maintained its financial condition in a manner satisfactory delivered to the Lender certified true copies of the License Agreements, including all amendments, supplements or other modifications thereto, and each License Agreement and amendment, supplement or other modification thereto shall be in full force and effect. (it being understood l) All filings, recordings and other actions that are necessary or reasonably requested by the Lender in order to establish, protect, preserve and perfect the security interest in the assets of the Borrower has ceased operationsas provided in the Security Agreement as a valid and perfected first priority security interest with respect to such assets shall have been duly effected. (m) All necessary governmental and third-party approvals, is currently without funds other than consents and filings, including in connection with the Loan and that the Loan will not, unless acquisition of the transactions contemplated Payment Rights by the Asset Purchase Borrower pursuant to the Acquisition Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred been obtained or made and be in Borrower’s financial condition full force and effect. (n) No provision of the Acquisition Agreement shall have been waived, amended, supplemented or prospects; (f) otherwise modified without the Financing Statement shall be assigned written consent of record to the Lender; and . (go) the Lender The Required Consents shall not have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderbeen rescinded, amended or modified.

Conditions Precedent to the Loan. The obligation of the Lender to disburse advance the Initial Advance and to fund the Certificate of Deposit shall be Loan is subject to satisfaction (or waiver by the Lender in its sole discretion) of each of the following conditionsconditions precedent. (a) The Lender or its counsel shall have received the following, unless waived in writing with each Instrument dated the date of this Agreement (or as otherwise agreed to by the Lender: (a) all legal matters ), and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, substance as shall be satisfactory to the Lender's counsel; (b) the Lender shall have received : (i) certificates this Agreement, duly executed by an authorized officer the Borrower and the Original Guarantor; (ii) each of the Security Documents, each duly executed by the Borrower or representative of Borrower upon which other applicable Credit Party, together with any UCC filings or other Instruments for filing or registration, notarizations thereof, notices with respect thereto or other Instruments determined by the Lender may conclusively rely until superseded to be necessary or desirable to establish and perfect the Liens established pursuant to the Security Documents; (iii) the Subordinations, each duly executed by similar certificates Computershare Trust Company of Canada; (iv) to the extent not specifically referenced, each other Loan Document, duly executed by the Borrower or the Credit Party that is party thereto; (v) a gold and silver supply agreement (in form and substance satisfactory to the Lender) among the Borrower, the Original Guarantor and the Lender, permitting the Lender at its option, to purchase all of the gold and silver produced at any of the Mining Properties, shall have been fully executed and delivered to the LenderLender by the Borrower and each of the other Credit Parties as necessary (the “Gold and Silver Supply Agreement”); (vi) an Omnibus Certificate for each Credit Party, certifying that duly executed by officers thereof substantially in the form of Exhibit A hereto, together with each Credit Party’s articles of incorporation, bylaws, resolutions, certificates of good standing and certification of incumbency; (1vii) evidence satisfactory to the Lender confirming the validity of the Security Documents and their application to the Loan and the Obligations as well as the validity and perfection of the Liens granted by such Security Documents with the Agreed Priority; (viii) opinions of legal counsel for the Credit Parties, dated the Closing Date and addressed to the Lender in form and substance acceptable to the Lender (subject to customary assumptions and qualifications); and (ix) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents approvals, opinions, documents, Instruments or other evidence as the Lender may reasonably require to request; (b) all representations and warranties made by the Credit Parties herein and/or in any other Loan Documents shall be executed by, or delivered true and correct on behalf of, Borrower; the Closing Date; (c) the Borrower shall have paid the Structuring Fee and all other applicable costs, fees and expenses on and as of the date of this Agreement; (d) no Default or Event of Default has occurred and is continuing or could occur as a result of the making of the Loan or the use of the proceeds thereof; (e) all approvals, consents and authorizations of Governmental Authorities, the shareholders of the Borrower or other Persons required in connection with this Agreement and the other Loan Documents shall have been obtained and remain in effect; (f) there is no pending or threatened action or proceeding before any Governmental Authority against or affecting any Credit Party or any Mineral Properties; (g) there shall not exist any litigation, investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to any Credit Party or any of its Subsidiaries, or any Mining Property, which has had or could be expected to have, a Material Adverse Effect, or which could be expected to affect the legality, validity or enforceability of this Agreement or any other Loan Document, that has not been settled, dismissed, vacated, discharged or terminated; (h) no Material Adverse Effect shall have occurred and the Lender has not become aware of any facts which, in the Lender’s opinion, could have a Material Adverse Effect during the term of the Loan; (i) since March 31, 2011, the date of the Borrower’s most recent audited financial statements, a copy of which is attached in Schedule 6.1(g) attached hereto, there has been no change, event or occurrence that has had, or could reasonably be expected to have, a Material Adverse Effect; (j) all data, reports, maps, surveys, financial statements, Instruments and other information requested by the Lender prior to the Closing Date for its due diligence, including searches of all Lien filings, registrations and records deemed necessary by the Lender, and copies of any documents, filings and Instruments on file in such jurisdictions, shall have been provided, and the Lender shall have received completed its technical, legal, financial, permitting, environmental and other due diligence investigation of the Note Credit Parties and the Mineral Properties in scope, and with all blanks appropriately completedresults, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender Lender; (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (gk) the Lender shall be satisfied with the form of the Loan Documents; (l) delivery of a solvency certificate from the chief financial officer or the chief executive officer of the Borrower in the form of Exhibit C, certifying that none of the Credit Parties (i) is legally prohibited or restricted from entering into and performing its obligations under the Loan Documents to which it is a party, (ii) is unable to pay its debts as they become due in the ordinary course of business, (iii) will be rendered insolvent by virtue of the advance of the Loan, (iv) will be left with an unreasonably small amount of capital or (v) has incurred Indebtedness which cannot be satisfied on a timely basis; (m) the Borrower shall have issued to the Lender 1,500,000 warrants all on terms and conditions satisfactory to the Lender, and for certainty, said warrants will be exercisable at an exercise price equal to $0.1862 and will have a term of three years (collectively, the “Warrants”); (n) the Borrower shall have received written instructions all regulatory approvals from the Borrower Exchange and any other necessary Authorization with respect to disbursement the issuance of the proceeds Warrants; and (o) each Credit Party has performed and complied with all agreements and conditions herein and in the other Loan Documents required to be performed and complied with on or prior to the date of the proposed Loan, except those agreements and conditions waived by the Lender. The Borrower’s request for a Loan then disbursable hereundershall be deemed to constitute a representation and warranty by the Borrower as of the date of such Loan that the applicable conditions in paragraphs (a) through (o) of this Section have been, and remain, satisfied.

Conditions Precedent to the Loan. The Lenders' obligation of to make the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be Loan under this Agreement is subject to the satisfaction of each of the following conditions, unless waived in writing by conditions precedent on the Lender: Closing Date after giving effect to the Loan: (a) all legal matters no Amortization Period, Default or Event of Default shall have occurred and all Transaction Documents incident to be continuing as of the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; Closing Date; (b) each of the Lender representations and warranties made by Borrower or any other Relevant Part in any Loan Document shall be true and correct in all material respects (or in all respects, in the case of any such representation or warranty qualified by materiality, “Material Adverse Effect” or “Individual Material Adverse Effect”) as of the Closing Date (or, in the case of any such representation or warranty expressly stated to have received (i) certificates by been made as of an authorized officer or representative earlier date, as of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; earlier date); (c) each of the Lender DSCR Test, the Debt Yield Test and the Combined LTV/DSCR Test shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; be satisfied; (d) the Outstanding Principal Balance shall not exceed the Borrowing Base; (e) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender made (it being understood that Borrower has ceased operationsor shall make, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower concurrently with respect to disbursement receipt of the proceeds of the related Loan) all deposits of Reserve Funds required pursuant to Article VI on or prior to the Closing Date; (f) Borrower shall have paid (or shall pay, concurrently with receipt of the proceeds of the Loan) all fees and expenses required to be paid to the Administrative Agent, any Servicing Agent or any Lender by Borrower on or prior to the Closing Date; (g) Borrower shall have entered into an Interest Rate Cap Agreement in accordance with the terms of Section 2.2.7; (h) the Lenders shall have received each of the Loan then disbursable hereunderDocuments, Collateral Documents, legal opinions and other agreements that are required to be delivered by the Lenders on or prior to the date hereof in connection with the Loan and approved each of the foregoing; (i) the Lenders shall have received a Diligence Agent Certification and Final Report with respect to the Properties; (j) the absence of (i) any change, occurrence, or development that could, in the aggregate, reasonably be expected to have a material adverse effect on the business condition (financial or otherwise), taken as a whole, or the operation or performance of Borrower or any of the Relevant Parties; and (ii) any event, circumstance, or information or matter which is inconsistent in a material adverse manner with any information disclosed to Lender by any Relevant Party prior to the date hereof; (k) the Administrative Agent and each Lender shall have received all documentation and other information with respect to Borrower and the Relevant Parties required by regulatory authorities or the Administrative Agent’s and/or such Lender’s internal policies under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act, and shall have completed their due diligence review in connection therewith; (l) each Lender shall have received UCC, lien, judgment, litigation, bankruptcy and name variation search reports satisfactory to it naming each Relevant Party from the appropriate offices in relevant jurisdictions; and (m) each Lender shall have received all necessary credit approvals in order to consummate the transactions contemplated by this Agreement, which satisfactory results and approvals shall be evidenced by each such Lender’s execution of this Agreement.

Conditions Precedent to the Loan. The obligation As a condition precedent to Lender making the Loan, the Borrower shall deliver to Lender on or before the date of the Lender to disburse Loan closing, the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of the following conditions, unless waived in writing by the Lender: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactoryfollowing, in form and substance, substance satisfactory to Lender's counsel; : (a) The SBA 504 Note (SBA Form 1505) (“Note”); (b) The Deed to Secure Debt and Security Agreement to be filed on the Property; (c) Assignment of Leases and Rents to be filed on the Property; (d) UCC-1 Financing Statements; (e) Evidence satisfactory to Lender shall have received of ownership of the Collateral by Borrower free and clear of encumbrances of any kind; (f) Corporate guaranties from Mt. Xxxx Nursing, LLC, AdCare Health Systems, Inc. and Hearth & Home of Ohio, Inc. (collectively, the “Guarantor”); (g) Executed SBA 504 Authorization; (h) Executed Central Servicing Agent Agreement (SBA Form 1506), in a form satisfactory to Lender; (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such Such other documents as reasonably may be required by the Lender may reasonably require to or Lender’s counsel. The Loan documents as provided above (collectively, the “Loan Documents”), when prepared, shall set forth the matters contained in the Loan Agreement and contain such other provisions as are deemed necessary or desirable by Lender. The form and substance of all such documents must be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect prior to disbursement by Lender of any of the proceeds of the Loan. Further, this Loan then disbursable hereunderAgreement will be automatically amended to include each and every term and condition of the SBA 504 Authorization, as may be amended from time to time. In the event between any conflict between the terms of the SBA 504 Authorization and this Loan Agreement, the SBA 504 Authorization shall control.

Conditions Precedent to the Loan. The Lender's obligation of to make the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be Loan hereunder is subject to satisfaction of the following conditionsconditions precedent, unless waived in writing by the each case in form and substance satisfactory to Lender: : (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received from Borrower a certificate, dated the date of the making of the Loan, of its authorized officer as to (i) certificates resolutions of its Board of Directors then in full force and effect authorizing the execution, delivery and performance of this Agreement, the Note, the Security Agreement, and each other Loan Document executed or to be executed by an it; and (ii) the incumbency and signatures of those of its officers authorized officer or representative of Borrower to act with respect to this Agreement, the Note, the Security Agreement, and each other Loan Document executed by it, upon which the certificate Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that it shall have received a further certificate of Borrower canceling or amending such prior certificate. (1b) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received its Note duly executed and delivered by Borrower. (c) Lender shall have received from Borrower an executed copy of the Note with all blanks appropriately completedSecurity Agreement, executed by an authorized signer for Borrower; the Trademark Security Agreement and the Patent Security Agreement. (d) Borrower Lender shall have maintained its financial condition received Uniform Commercial Code financing statements (Form UCC-1), naming Borrower as the debtor and Lender as the secured party, or other similar instruments or documents, properly executed and suitable for filing under the Uniform Commercial Code of all jurisdictions as may be necessary or, in a manner satisfactory the opinion of Lender, desirable to perfect the security interest of Lender pursuant to the Lender Loan Agreement. (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by e) The conditions set forth in Sections 7.1 through 7.3 of the Asset Purchase Agreement are consummatedto the obligations of the Borrower to consummate the Asset Purchase shall have been satisfied in full (without amendment or waiver of, satisfy all or any other forbearance to exercise any rights with respect to, any of the terms or provisions thereof by the Borrower’s known creditors’ claims), and no material adverse change the transactions contemplated in the Asset Purchase Agreement shall have occurred in Borrower’s financial condition or prospects; been consummated. (f) the Financing Statement All documents executed or submitted pursuant hereto by or on behalf of Borrower shall be assigned of record reasonably satisfactory in form and substance to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunder.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund Loan on the Certificate of Deposit shall be Closing Date is subject to the fulfillment, to the satisfaction of the Lender, of all of the following conditions, unless waived conditions precedent in writing by addition to the Lender: conditions specified in Article II: (a) all legal matters The Borrower shall have executed and all Transaction Documents incident delivered to the transactions contemplated hereby Lender the Note, dated the Closing Date. (b) The Lender shall be reasonably satisfactoryhave received on or before the Closing Date an executed copy of: (i) a certificate of the Borrower, dated the Closing Date, substantially in the form set forth in Exhibit D-1 hereto together with the attachments specified therein; (ii) a certificate of XOMA, dated the Closing Date, substantially in the form set forth in Exhibit D-2 hereto together with the attachments specified therein; (iii) an opinion of Cxxxxxx Dxxx & Pxxxxxx, special Bermuda counsel to XOMA and XOMA Bermuda, dated the Closing Date, in form and substancesubstance satisfactory to the Lender; (iv) an opinion of Cxxxxx Xxxxxx & Rxxxxxx LLP, U.S. counsel to the XOMA Parties, dated the Closing Date, in form and substance satisfactory to the Lender's counsel; (v) an opinion of Cxxxxxxxxxx X. Xxxxxxxx, Vice President, General Counsel and Secretary of XOMA, dated the Closing Date, in form and substance satisfactory to the Lender; and (bvi) an opinion of Axxx Xxxxxxx, Senior Director of Intellectual Property of XOMA, dated the Lender Closing Date, in form and substance satisfactory to the Lender. (c) The Borrower shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that Lender certified true copies of the Borrower Documents. (1d) all requisite action taken in connection with The Borrower shall have executed and delivered to the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing Lender the Loan Documents, Documents (including the amendment to the Security Agreement the form of which is at- tached hereto as Exhibit C) and (ii) such other documents as the Lender may reasonably require request, in each case, in form and substance satisfactory to the Lender. (e) XOMA Bermuda shall have executed and delivered to the Lender the representation letter in the form set forth in Exhibit I (the “XOMA Bermuda Representation Letter”). (f) The Transaction Documents shall be executed by, or delivered on behalf of, Borrower; in full force and effect. (cg) the The Lender shall have received the Note with upfront underwriting fee set forth in Section 2.05 and all blanks appropriately completedother fees and expenses due and payable to the Lender on the Closing Date under this Agreement and the other Transaction Documents. (h) The organizational structure and capital structure of the Borrower shall be to the satisfaction of the Lender. (i) No event shall have occurred and be continuing that constitutes a Default or an Event of Default under this Agreement or a similar event under the other Transaction Documents and no such event will occur or will have occurred by reason of the Loan. (j) The representations and warranties made by the Borrower in Article VIII hlereof and in the other Transaction Documents shall be true and correct as of the Closing Date, executed by an authorized signer for Borrower; before and after giving effect to the Loan. (dk) The Borrower shall have maintained its financial condition in a manner satisfactory delivered to the Lender certified true copies of the License Agreements, including all amendments, supplements or other modifications thereto, and each License Agreement and amendment, supplement or other modification thereto shall be in full force and effect. (it being understood l) All filings, recordings and other actions that are necessary or reasonalbly requested by the Lender in order to establish, protect, preserve and perfect the security interest in the assets of the Borrower has ceased operationsas provided in the Security Agreement as a valid and perfected first priority security interest with respect to such assets shall have been duly effected. (m) All necessary governmental and third-party approvals, is currently without funds other than consents and filings, including in connection with the Loan and that the Loan will not, unless acquisition of the transactions contemplated Payment Rights by the Asset Purchase Borrower pursuant to the Acquisition Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred been obtained or made and be in Borrower’s financial condition full force and effect. (n) No provision of the Acquisition Agreement shall have been waived, amended, supplemented or prospects; (f) otherwise modified without the Financing Statement shall be assigned written consent of record to the Lender; and . (go) the Lender The Required Consents shall not have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderbeen rescinded, amended or modified.

Conditions Precedent to the Loan. The Lender’s obligation to make any advance with respect to the Loan for the reimbursement of a portion of the Lender purchase price paid by the Borrower to disburse consummate the Initial Advance and to fund acquisition of each of the Certificate of Deposit Aircraft shall be subject to satisfaction the prior fulfillment by Borrower of the following conditions, unless waived in writing by the Lender: (a) all legal matters and all Transaction Documents incident : 5.1 No Event of Default shall have occurred prior to the transactions contemplated hereby shall be reasonably satisfactorydate of each such advance and, in form and substanceif requested by Lender, to Lender's counsel; (b) the Lender shall have received (i) certificates a certificate to that effect dated the date of each such advance and signed by an authorized officer Borrower. 5.2 Each representation and warranty in Section 3 hereof and under each Guaranty and each Collateral Document is true and correct in all material respects, without duplication as to any materiality modifiers, qualifications, or representative limitations set forth in Section 3 or in such Guaranty or Collateral Document, as of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered date of such advance, except to the Lenderextent any such representation or warranty is stated to relate solely to an earlier date, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) which case such other documents as the Lender may reasonably require to be executed by, representation or delivered on behalf of, Borrower; (c) the Lender warranty shall have received the Note with been true and correct in all blanks appropriately completed, executed by an authorized signer for Borrower; (d) material respects on and as of such earlier date. 5.3 Borrower shall have maintained its financial condition delivered a written request to Lender at least three (3) Business Days in a manner advance of the proposed date for the funding of the Loan identifying the amount requested to be Borrowed and providing written instructions with regard to the payment instructions for such funds. 5.4 Borrower shall have delivered an Aircraft Mortgage with respect to such Aircraft in form an substance satisfactory to the Lender and in form appropriate for registration with the FAA and the International Registry. 5.5 Borrower shall have delivered completed Lien searches conducted in the recording office of the FAA with the International Registry and “priority search certificates” (as defined in the Regulations and Procedures for the International Registry), for the applicable Aircraft satisfactory to the Lender (it being understood that Borrower has ceased operationsdated as of a date reasonably satisfactory to the Lender), is currently without funds in each case, reflecting the absence of Liens on the Aircraft and related Collateral other than Permitted Liens, and the absence of registrations on the International Registry with respect to the Aircraft and related Collateral other than the Loan registrations contemplated herein, and (in the case of the searches conducted at the recording office of the FAA and the International Registry) indicating that the Loan will not, unless Borrower is the transactions contemplated registered owner of such Aircraft and related Collateral intended to be covered by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospectsapplicable Aircraft Mortgage; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the and 5.6 Lender shall have received written instructions satisfactory evidence of the filing for recordation with the FAA of the Aircraft Mortgage and registration with the International Registry of the interests intended to be created thereby (together with any other necessary documents, instruments, affidavits or certificates) as the Lender may deem necessary to perfect and protect the Liens created thereby. 5.7 Borrower shall have delivered reasonably satisfactory evidence to Lender that Borrower has obtained all insurance required under Section 3.5 of the applicable Aircraft Mortgage and evidence that Lender has been named as lender loss payee and additional insured in accordance with the terms of such Aircraft Mortgage and this Agreement. 5.8 Borrower shall have delivered a certificate dated the Closing Date from an officer of the Borrower with respect certifying that: (i) attached is a copy of each Aircraft Purchase Agreement and any certificates of acceptance, bills of sale and other similar documents, and each remains in full force and effect, and has not been supplemented, modified or amended; (ii) the purchase price required to disbursement be paid under each Acquisition Purchase Agreement has been paid in full and all conditions to the closing of the proceeds acquisition of each Aircraft have been satisfied; (iii) Borrower and Kodiak have delivered all required certificates and approvals for the transfer of title and ownership in the Aircraft and that payment of the Loan then disbursable hereunderpurchase price under the applicable Aircraft Purchase Agreement and title in the Aircraft has transferred from Kodiak to the Borrower; (iv) since December 31, 2019, there has been no Material Adverse Effect; and (v) certifying as to the matters set forth in Section 5.1 and 5.2.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund the Certificate of Deposit shall be Loan hereunder is subject to satisfaction of the following conditionsconditions precedent: (a) Receipt by the Lender of the following items, unless waived each in writing form and substance satisfactory to the Lender: (i) executed counterparts of this Agreement and the Guaranty, duly executed and delivered by each Loan Party that is a party thereto; (ii) if requested by the Lender: , the Note executed by the Borrower in favor of the Lender; (aiii) evidence that all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which action that the Lender may conclusively rely until superseded by similar deem necessary or desirable in order to perfect the Liens created hereunder has been taken; (iv) such certificates delivered of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Lender may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to the Lender, certifying that (1) all requisite action taken act as a Responsible Officer in connection with this Agreement and the transactions contemplated hereby has been duly authorized and other Loan Documents to which such Loan Party is a party or is to be a party; (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (iiv) such other documents and certifications as the Lender may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be executed byexpected to have a Material Adverse Effect; (vi) a favorable opinion of Xxxxxx & Xxxxxx LLP, or delivered counsel to the Loan Parties, addressed to the Lender, as to the matters concerning the Loan Parties and the Loan Documents as the Lender may reasonably request; (vii) a certificate signed by a Responsible Officer of the Borrower certifying as to the matters set forth in Section 2(b) below; (viii) a certificate from the chief financial officer of the Borrower attesting to the Solvency of the Borrower and its Subsidiaries on behalf ofa consolidated basis before and after giving effect to the execution and delivery of the Loan Documents, Borrowerthe making of the Loan, and the consummation of the Transactions; and (ix) all documentation and other information that the Lender requests in order to comply with its ongoing obligations under applicable “know your customer” an anti-money laundering rules and regulations, including the Act. (b) The Specified Representations shall be true and correct in all respects. (c) the Lender The Transactions shall have received been completed in accordance with the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement terms of the proceeds of the Loan then disbursable hereunderTransfer Documents and applicable Law.

Conditions Precedent to the Loan. The obligation of As a condition precedent to making the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of Loan hereunder, the following conditions, unless waived in writing by the Lender: must have occurred: (ai) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received from Borrower the enclosed duplicate of this Agreement duly executed and delivered on behalf of Xxxxxxxx; (iii) certificates by an authorized officer Lender shall have received from Borrower in form satisfactory to Lender: (x) a certified borrowing resolution or representative other evidence of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered Xxxxxxxx's authority to the Lender, certifying that borrow; (1y) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized a certificate of incumbency; and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (iiz) such other documents (including legal opinions) as the Lender may reasonably require to be executed byrequest; (iii) If requested by Xxxxxx, or delivered on behalf of, Borrower; (c) the Lender Xxxxxx shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; from Borrower a promissory note as contemplated in PARAGRAPH 1(d) above; (div) Borrower shall have maintained its financial condition paid to Lender a closing fee in the amount agreed to by Xxxxxxxx and Lender in a manner letter agreement dated on or about April 20, 1999; (v) Borrower and Lender shall have entered into an amendment to the Credit Agreement in form and substance satisfactory to Lender; (vi) Borrower must furnish Lender with a notice of borrowing in form and substance reasonably satisfactory to Lender; (vii) each representation and warranty set forth in PARAGRAPH 3 below shall be true and correct in all material respects as if made on the Lender date of such borrowing; (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all viii) no Default or Event of Borrower’s known creditors’ claims), and no material adverse change Default shall have occurred in Borrower’s financial condition or prospectsand be continuing on the date of such borrowing; and (fix) the Financing Statement Closing Date shall have occurred on or before April 23, 1999. The notice of borrowing shall be assigned of record deemed a representation and warranty by Borrower that the conditions referred to the Lender; in clauses (vii) and (gviii) the Lender shall above have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderbeen met.

Conditions Precedent to the Loan. The obligation of the Lender to disburse advance the Initial Advance and to fund Loan on the Certificate of Deposit Closing Date shall be subject to the fulfillment, to the sole satisfaction of Lender, of all of the following conditions, unless waived conditions precedent in writing by addition to the Lender: conditions specified in Section 2.01 and Section 2.02: (a) all legal matters This Agreement and all Transaction the other Loan Documents incident shall have been executed and delivered to the transactions contemplated hereby Lender by each party thereto (other than Lender), and Borrower shall have delivered, or caused to be delivered, such other documents as Lender reasonably satisfactoryrequested, in each case, in form and substance, substance satisfactory to Lender's counsel; . (b) Lender shall have received: (i) an executed copy of a certificate of each of Borrower and Parent, executed respectively by a Senior Officer thereof, dated the Closing Date, in the form attached as Exhibit K to the Disclosure Letter; (ii) an executed copy of an opinion of Xxxxxx LLP, counsel to Borrower and Parent, dated the Closing Date in form and substance reasonably satisfactory to Lender; (iii) evidence of the release of the Transferred Assets and the Purchased Revenue Interest from any filing of any UCC financing statement made by Hercules in connection with the Venture Financing Agreement, in form and substance reasonably satisfactory to Lender; and (iv) an executed copy of the Licensee Instruction Letter, executed by Borrower, Parent and Licensee. (c) Parent shall have delivered to Lender a certificate, dated the Closing Date, of a Senior Officer (the statements in which shall be true and correct on and as of the Closing Date): (i) attaching copies, certified by such officer as true and complete, of each Transaction Party’s certificate of incorporation or other Organizational Documents (together with any and all amendments thereto) certified by the appropriate Governmental Authority as being true, correct and complete copies; (ii) attaching copies, certified by such officer as true and complete, of ACTIVE/105942580.15 resolutions of the Board of Directors (or similar governing body) of Transaction Party authorizing and approving the execution, delivery and performance by such party of the Loan Documents to which it is a party and the transactions contemplated herein and therein; (iii) setting forth the incumbency of the officers of each such Transaction Party who executed and delivered such Loan Documents, including therein a signature specimen of each such officer; and (iv) attaching copies, certified by such officer as true and complete, of certificates of the appropriate Governmental Authority of the jurisdiction of formation, stating that such party was in good standing under the laws of such jurisdiction as of a recent date. (d) (i) The Transaction Documents (other than Borrower’s Organizational Documents) shall be in full force and effect and (ii) Borrower’s Organizational Documents shall be in full force substantially concurrently with the making of the Loan on the Closing Date. (e) No event shall have occurred and be continuing that (i) constitutes a Default or an Event of Default or a Prepayment Trigger or (ii) could reasonably be expected to constitute a Material Adverse Effect (without giving effect to the cure period applicable to a Prepayment Trigger based thereon), in each case both at the time of, and immediately after giving effect to, the making of the Loan on the Closing Date. (f) The representations and warranties made by Borrower, PRTK SPV1 and Parent in Article VII hereof and in the other Loan Documents shall be true and correct in all material respects as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, before and after giving effect to the Loan (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects). (g) All necessary governmental and third-party approvals, consents and filings, including in connection with the Loan, the Security Agreement, the Contribution Agreement and the other Loan Documents shall have been obtained or made and shall remain in full force and effect. (h) Borrower shall have delivered to Lender the Perfection Certificate and certified copies of UCC, United States Patent and Trademark Office and United States Copyright Office, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name Borrower as debtor and that are filed in those state and county jurisdictions in which Borrower is organized or maintains its principal place of business and such other searches that are required by the Perfection Certificate or that Lender deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Loan Documents (other than any Permitted Liens and other Liens acceptable to Lender). (i) Lender shall have received (i) certificates all UCC financing statements in appropriate form for filing under the UCC, and all other certificates, agreements, instruments, filings, recordings and other actions, including recordations in the United States Patent and Trademark Office and the United States Copyright Office that are necessary or reasonably requested by an authorized officer or representative Lender in order to establish, protect, preserve and perfect the security interest in the assets of ACTIVE/105942580.15 Borrower upon which constituting Collateral as provided in the Lender may conclusively rely until superseded by similar certificates delivered Security Agreement as a valid and perfected first priority security interest with respect to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has such assets shall have been duly authorized and effected (2or arrangements therefor satisfactory to Lender shall have been made). (j) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation, the Note with all blanks appropriately completedPatriot Act, executed by an authorized signer for Borrower; including and the information described in Section 12.18. (dk) Lender shall have received such other approvals, opinions, documents or materials as Lender may reasonably request. (l) Borrower shall have maintained its financial condition paid all fees, costs and expenses (including legal fees and expenses) agreed in a manner satisfactory writing to be paid by it to Lender in connection herewith (including pursuant to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (fFee Letter) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderextent due.

Conditions Precedent to the Loan. The obligation Prior to making the Loan to or for the account of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of the following conditionsBorrower hereunder, unless waived in writing by the Lender: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative each of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered following in form and substance satisfactory to the Lender, certifying that : (1a) all requisite action taken in connection with executed originals of each of the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Facility Documents, and including, without limitation, this Agreement, the Note, the Pledge Agreement, together with all certificates evidencing the Collateral (iias defined in the Pledge Agreement) such other documents as duly indorsed in blank or to the order of the Lender may reasonably require and the UCC-1 financing statement referred to be in Section 4.2 of the Pledge Agreement (as defined below); (b) executed byoriginals of that certain amendment to the partnership agreement of Merieux OraVax Co., or delivered on behalf ofa Delaware General Partnership ("Merieux"), Borrower; relating to changes in the ownership of Merieux following the date thereof in form and substance acceptable to the Lender; (c) certified copies of the Lender shall have received the Note with all blanks appropriately completedBorrower's articles of incorporation, executed by an authorized signer for Borrower; bylaws, partnership agreement or other organizational documents; (d) a certified copy of resolutions of the Borrower's board of directors or other governing body authorizing the entering into of the Facility by the Borrower shall have maintained its financial condition in and the execution, delivery and performance by the Borrower of the Facility Documents; (e) a manner satisfactory to certified copy of an incumbency certificate of the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and certifying that the Loan will not, unless officers or other representatives executing and delivering the transactions contemplated by Facility Documents on behalf of the Asset Purchase Agreement Borrower are consummated, satisfy all duly elected or appointed officers or representatives of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record Borrower with authority to the Lender; and (g) the Lender shall have received written instructions from bind the Borrower with respect to disbursement such Facility Documents and the transactions contemplated thereby; (f) all other resolutions, authorizations, approvals, powers, consents, licenses and documents as may be necessary or otherwise required by the Lender. (g) at the time of making such Loan and after giving effect thereto, no Event of Default (as defined below) or any event or circumstance which, with the giving of notice or the lapse of time or both, would constitute an Event of Default (a "Default") has occurred or is continuing with respect to the Borrower under any of the proceeds of the Loan then disbursable hereunderFacility Documents.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund the Certificate of Deposit shall be Loan is subject to satisfaction of the following conditions, unless waived in writing by condition precedent that the Lender: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby Lender shall be reasonably satisfactoryhave received, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner substance satisfactory to the Lender (it being understood that Borrower has ceased operationsand its counsel, is currently without funds the following: this Agreement, the Note, the Security Documents and the other than the Loan and that the Loan will notDocuments, unless the transactions contemplated duly executed by the Asset Purchase Agreement are consummated, satisfy all Borrower; a certificate of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition the Secretary or prospects; (f) the Financing Statement shall be assigned an Assistant Secretary of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement resolutions of the proceeds Board of Directors authorizing the execution and delivery of this Agreement, the Note, the Security Documents and the other Loan Documents and identifying the officer(s) authorized to execute, deliver and take all other actions required under this Agreement, and providing specimen signatures of such officers; the certificate of incorporation of the Borrower and all amendments and supplements thereto, filed in the office of the Secretary of State of Delaware, each certified by said Secretary of State as being a true and correct copy thereof; the Bylaws of the Borrower and all amendments and supplements thereto, certified by the Secretary or an Assistant Secretary as being a true and correct copy thereof; a certificate of the Secretary of State of Delaware, as to the Borrower's legal existence and good standing in such state and listing all documents on file in the office of said Secretary of State and certificates of the Secretary of State of Alabama as to the Borrower's qualification and good standing as a foreign corporation in such state; documentary evidence acceptable to Lender as to the tax good standing of the Borrower in Delaware and Alabama; opinions of counsel addressed to Lender from counsel to the Borrower, substantially in the form of Exhibit F hereto; appraisals of the Collateral; documentary evidence of compliance by the Collateral with all zoning, environmental and other applicable laws; such evidence shall include, without limitation, a recent environmental audit of the property encumbered by the Real Property Security Instrument (a complete Phase I Environmental Assessment shall be performed on all of the property encumbered by the Real Property Security Instrument; Lender shall review all environmental information submitted by the Borrower and may request additional information to determine if additional Environmental Assessments beyond the scope of the Phase I need to be performed on any portion of the said property; Funding of the Loan then disbursable hereunder.shall not occur until the Lender is fully satisfied, in Lender's absolute and sole discretion, that all existing environmental concerns and planned remediation on the said property will not materially affect the Borrower's operations); documentary evidence of the insurance coverage required pursuant to the Loan Documents; Uniform Commercial Code, judgment, tax and such other lien searches deemed appropriate by Lender's counsel; pro forma title policy insuring the lien of the Real Property Security Instrument together with escrow instructions binding the title insurer to issue a title insurance policy in such form; survey of the property encumbered by the Real Property Security Instrument; such other documents, and completion of such other matters, as counsel for the Lender may deem necessary or appropriate; payment of an administrative fee equal to one percent (1%) of the aggregate principal amount of the Loan; payment of all expenses incurred by Lender in connection with the closing of the Loan; and

Conditions Precedent to the Loan. The obligation of the Lender Group (or any member thereof) to disburse make the Initial Advance and to fund the Certificate of Deposit shall be Loan, is subject to the fulfillment, to the satisfaction of Agent, of each of the conditions precedent set forth below: (a) Agent shall have received the commitment fee payable pursuant to Section 2.9; (b) Agent shall have received each of the following conditionsdocuments, unless waived duly executed, and each such document shall then be in writing full force and effect: (i) this Agreement, (ii) the Guarantor Security Agreement, (iii) the Guaranty, (iv) the Intercompany Subordination Agreement, (v) the Intercreditor Agreement, and (vi) the Pledge Agreement; (c) Agent shall have received a certificate from the Secretary of Borrower attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party and authorizing specific officers of Borrower to execute the same; (d) Agent shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Lender: Secretary of Borrower or a certificate from the Secretary of Borrower certifying that there have been no amendments or other modifications to Borrower’s Governing Documents since the Closing Date; (ae) all legal matters and all Transaction Documents incident Agent shall have received a certificate of status with respect to Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (f) Agent shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (g) Agent shall have received a certificate from the Secretary of each Guarantor attesting to the transactions contemplated hereby resolutions of such Guarantor’s Board of Directors authorizing its execution, delivery, and performance of the Loan Documents to which such Guarantor is a party and authorizing specific officers of such Guarantor to execute the same; (h) Agent shall have received copies of each Guarantor’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of such Guarantor or a certificate from the Secretary of such Guarantor certifying that there have been no amendments or other modifications to such Borrower’s Governing Documents since last delivered to Agent and certified by the Secretary of such Guarantor; (i) Agent shall have received a certificate of status with respect to each Guarantor, dated within 10 days of the Closing Date, such certificate to be reasonably satisfactoryissued by the appropriate officer of the jurisdiction of organization of such Guarantor, which certificate shall indicate that such Guarantor is in good standing in such jurisdiction; (j) Agent shall have received certificates of status with respect to each Guarantor, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of such Guarantor) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that such Guarantor is in good standing in such jurisdiction; (k) Agent shall have received an opinion of Obligors’ counsel and Obligor’s FCC counsel in form and substance, substance satisfactory to Lender's counsel; Agent; (bl) the Lender Agent shall have received satisfactory evidence (iincluding a certificate of the chief financial officer of Borrower) certificates that all tax returns required to be filed by an authorized Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower, its Subsidiaries, or their properties, assets, income, and franchises (including Real Property taxes and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (m) Borrower shall have Senior Loan Availability, after giving effect to the funding of the Loans and the repayment of the Senior Loans with the proceeds thereof, of not less than $20,000,000; (n) Agent shall have received a certificate from the chief financial officer or representative of Borrower upon which with a copy of the Lender may conclusively rely until superseded by similar certificates Projections most recently delivered to the Lender, Lenders prior to the Closing Date attached thereto and certifying that such Projections are still in effect and continue to represent Borrower’s good faith best estimate of the Obligors’ future performance for the periods covered thereby; (1o) Borrower shall have paid all requisite action taken Lender Group Expenses incurred in connection with the transactions contemplated hereby has been duly authorized and evidenced by this Agreement; (2p) The Lenders shall have received an updated appraisal of the namesOLV Value of the Stations, signatures, and authority the results of Borrower’s authorized signers executing which shall be satisfactory to the Lenders; (q) [Intentionally omitted]; (r) Agent shall have received executed copies of each of the Senior Loan Documents, each of which shall be in form and substance satisfactory to the Required Lenders, together with a certificate of the Secretary of Borrower certifying each such document as being a true, correct, and complete copy thereof; (iis) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender Agent shall have received satisfactory evidence that all of the Note with all blanks appropriately completed, executed conditions precedent to the effectiveness of the Senior Loan Documents have been (or concurrently are being) satisfied or waived by an authorized signer for Borrower; the Senior Loan Agent and that the Senior Loan Advances requested by Borrower under the Senior Loan have been (dor concurrently are being) disbursed; (t) Borrower shall have maintained its financial condition received all licenses, approvals or evidence of other actions required by any Governmental Authority in a manner satisfactory to connection with the Lender (it being understood that execution and delivery by Borrower has ceased operations, is currently without funds of this Agreement or any other than Loan Document or with the Loan and that the Loan will not, unless consummation of the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), hereby and no material adverse change shall have occurred in Borrower’s financial condition or prospects; thereby; (fu) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender Agent shall have received written instructions from the tax, lien, judgment, bankruptcy and other searches for Borrower with respect and its Subsidiaries satisfactory to disbursement Agent; (v) Agent shall have received a certificate of the proceeds chief financial officer of Borrower that Borrower’s EBITDA plus the Loan then disbursable hereunderamount of Overhead Expenses for the 12 month period ending July 31, 2004 equals or exceeds $2,000,000; and (w) Agent shall have received certificates of insurance evidencing the insurance coverages required pursuant to Section 6.8; provided, that the loss payee clauses naming Agent as secondary loss payee (subordinate to the Senior Agent) may be delivered together with the insurance policies 30 days after the Closing Date as provided in Section 6.8.

Conditions Precedent to the Loan. The obligation obligations of the Lender to disburse make the Initial Advance and Loan to fund the Certificate of Deposit shall be Borrower is subject to satisfaction of the following conditions, unless waived in writing by the Lender: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying condition precedent that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completedfollowing, each (unless otherwise expressly stated) in form and substance satisfactory to the Lender: (a) This Agreement and the Note, properly executed by an authorized signer for on behalf of the Borrower; ; (b) The Receivables Purchase Agreement, properly executed on behalf of the Borrower and TCSI; (c) The Lockbox Agreement, the Lockbox Paying Agent Agreement, the Backup Servicing Agreement and the Paying Agent Agreement, properly executed on behalf of the applicable parties; (d) The Borrower shall will have maintained its financial condition adjusted equity (as defined in FASB 91) of at least $1,142,800; (e) UCC-1 financing statements to be filed with the Secretaries of State of South Dakota and Delaware naming (i) TCSI as debtor/seller, the Borrower as secured party/purchaser and the Lender as assignee and (ii) the Borrower as debtor and the Lender as secured party; (f) Current UCC searches of the Secretaries of State of South Dakota and Delaware showing that no financing statements or other notifications or filings have been filed and remain in effect against the Borrower or TCSI with respect to any Collateral, other than those for which the Lender has received an appropriate release, termination or satisfaction or those permitted in accordance with Section 8.1; (g) Certificates of the Secretary or Assistant Secretary of each of the Borrower and TCSI containing: (i) copy of the resolutions of the board of directors evidencing approval of all Transaction Documents and the other matters contemplated hereby; (ii) the names of the officers authorized to sign the Transaction Documents and the other documents or certificates to be delivered pursuant to this Agreement, together with the true signatures of such officers. The Lender may conclusively rely upon such certificates until it receives a manner further certificate of the Secretary or an Assistant Secretary of the Borrower or TCSI (as the case may be) canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate; and (iii) copies of the certificate of incorporation and bylaws certified as being true and correct copies thereof. (h) A certificate of good standing with respect to each of the Borrower and TCSI dated not more than thirty (30) days prior to the Closing Date, and evidence satisfactory to the Lender that each of the Borrower and TCSI is qualified to conduct its business in each state where it presently conducts such business if failure to obtain any such qualification or licensing is reasonably likely to have a Material Adverse Effect; (it being understood that Borrower has ceased operationsi) A certificate as to the aggregate amount of Eligible Receivables as of the close of business on April 30, is currently without funds other than 2001; (j) The opinion of Xxxxxxx X. Angel as to certain corporate matters with respect to TCSI, in form and substance satisfactory to the Loan Lender and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record addressed to the Lender; and ; (gk) the Lender shall have received written instructions from the Borrower One or more opinions of Faegre & Xxxxxx LLP with respect to disbursement "true sale," substantive consolidation, creation of a security interest under this Agreement and the Receivables Purchase Agreement, and corporate matters with respect to the Borrower and TCSI, each in form and substance satisfactory to the Lender and addressed to the Lender; (l) The opinion of Davenport, Evans, Xxxxxxx & Xxxxx, L.L.P. regarding perfection and priority of the proceeds Borrower's and the Lender's respective security interests in the Receivables in form and substance satisfactory to the Lender and addressed to the Lender; (m) Payment of all fees and expenses then due and payable pursuant to a fee letter between the Lender and the Borrower and the other fees and expenses payable pursuant to Section 12.5; and (n) A solvency certificate from an officer of the Loan then disbursable hereunder.Borrower in the form of Exhibit B.

Conditions Precedent to the Loan. The obligation of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be Loan is subject to the satisfaction of the following conditions, unless waived in writing by the Lender: : (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completedfollowing, executed by each dated as of the date of the funding of the Loan or as of an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition earlier date acceptable to the Lender, in a manner form and substance satisfactory to the Lender and its counsel: (it being understood i) the Note evidencing the Loan, duly executed by the Borrower; (ii) the Warrant Purchase Agreement and Warrants specified in Section 2.3(a); (iii) the Intellectual Property Security Agreement, duly executed by the Borrower; (iv) the Deposit Account Control Agreement, duly executed by all parties thereto; (v) the Cohen Guaranty, duly executed by Mr. Peter Cohen; (xx) the Bishara Guaranty, duly exexxxxx xx Xx. Jason Bishara; (vii) the Subsidiary Guaranty, xxxx xxxxxxxx xnd delivered; (viii) a solvency certificate, with respect to the Subsidiary Guarantor, duly executed by an applicable Responsible Officer of the Subsidiary Guarantor, in form, scope and substance satisfactory to Lender and its counsel; (ix) an audited consolidated balance sheet as of December 31, 2005, and an statement of operations and cash flows for the year ended December 31, 2005, in each case, certified has having been prepared in accordance with GAAP, along with an Officer's Certificate of a Responsible Officer of Borrower certifying that Borrower has ceased operationssince December 31, is currently without funds other than 2005, no material and adverse change in the Loan business, assets, operations or financial condition of the Borrower's and that its subsidiaries' businesses shall have occurred; (x) an opinion of counsel for the Loan will notBorrower, unless in form, scope and substance satisfactory to Lender and its counsel, covering such matters incident to the transactions contemplated by this Agreement as the Asset Purchase Lender and its counsel may reasonably require, including, without limitation, that the Lender has a first priority perfected security interest in all the Collateral; (xi) copies of certificates of insurance that evidence all policies of insurance required by this Agreement are consummatedand the other Loan Documents, satisfy together with loss payee endorsements for all such policies naming the Lender as lender loss payee and an additional insured; (xii) a copy of Borrower’s known creditors’ claims)the budget and projections of the Borrower and its Subsidiaries for the fiscal years of 2006 and 2007 along with monthly cash reports for January and February 2006, accompanied by a certificate executed by the Chief Operating Officer of the Borrower certifying to the Lender that such budget, projections and cash reports have been prepared in good faith based upon the assumptions contained therein and all information available at the time of preparation thereof and, as of the date of such certificate, such Chief Operating Officer is not aware that of any information contained in such budget, projections or cash reports is false or misleading in any material respect or of any omission of information which causes such budget, projections or cash reports to be false or misleading in any material respect; (xiii) copies of the Governing Documents of the Borrower and its Subsidiaries and a copy of the resolutions of the Board of Directors (or similar evidence of authorization) of the Borrower and its Subsidiaries authorizing the execution, delivery and performance of this Agreement, the other Loan Documents to which the Borrower and/or its Subsidiaries is or is to be a party, as applicable, and no material adverse change shall the transactions contemplated hereby and thereby, attached to which is a certificate of the Secretary of the Corporation certifying (A) that such copies of the Governing Documents and resolutions (or similar evidence of authorization) are true, complete and accurate copies thereof, have occurred not been amended or modified since the date of such certificate and are in Borrower’s financial condition or prospects; full force and effect and (fB) the Financing Statement shall be assigned incumbency, names and true signatures of record the officers of each such entity authorized to sign the Lender; and Loan Documents to which it is a party; (gxiv) the Lender shall have received written instructions from the Borrower with respect to disbursement the Borrower and its Subsidiaries, a good standing certificate from the Secretary of State of (A) its state of incorporation or formation and (B) each state in which it is qualified as a foreign entity, each dated within ten days of the Closing Date; (xv) a Collateral Access Agreement for each parcel of Property specified on Schedule 5.1(a)(xv), duly executed by the lessor of such Property; (xvi) non-compete and confidentiality agreements from the Responsible Officers of the Borrower covering, at a minimum, the period from the closing Date through and including the second anniversary thereof, in form, scope and substance satisfactory to Lender and its counsel; (xvii) a certification as to Borrower's non-foreign status which complies with the provisions of Section 1445(b)(2) of the Internal Revenue Code, signed by the Borrower; (xviii) An Officer's Certificate certified by the Chief Operating Officer of the Borrower certifying that after giving effect to the execution and delivery of the Loan Documents, no Default shall exist under the Loan Documents; and (xix) such other agreements, instruments, documents and evidence as the Lender and its counsel in good faith deems necessary in its reasonable discretion in cxxxxxxxxx xith the transactions contemplated hereby. (b) There shall be no pending or, to the knowledge of the Borrower threatened litigation, proceeding, inquiry or other action (i) seeking an injunction or other restraining order, damages or other relief with respect to the transactions contemplated by this Agreement or the other Loan Documents or (ii) which affects or could affect the business, prospects, operations, assets, liabilities or condition (financial or otherwise) of the Borrower, or any other litigation, proceeding, inquiry or other action that could not reasonably be expected to have a Material Adverse Effect. (c) The Borrower shall have paid, or shall have authorized the Lender to deduct from the proceeds of the Loan, the Closing Fee, and an amount to reimburse Lender for all reasonable fees and expenses of the Lender incurred in connection with the negotiation, preparation, execution and delivery of the Loan then disbursable hereunderDocuments (including, without limitation, reasonable fees and expenses of counsel to the Lender in connection therewith), in an amount not to exceed $ 12,500 in the aggregate. (d) Except for filings required to perfect the Liens of the Lender, all of which shall have been completed prior to or contemporaneously with, the Closing, no consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the execution, delivery, performance, validity or enforceability of this Agreement, the Note or the other Loan Documents or the consummation of the transactions contemplated hereby or thereby or the continuing. (e) The Borrower is a "qualified business" pursuant to New York CAPCO Law.

Conditions Precedent to the Loan. The obligation In addition to each of the conditions precedent set forth in Section 8.1 being met, the obligations of Lender to disburse extend the Initial Advance and to fund the Certificate of Deposit Loan hereunder shall be subject to satisfaction of the following conditions, unless waived in writing by the Lender: : (a) all legal matters There shall not have occurred and all Transaction Documents incident to be continuing any Event of Default and the transactions contemplated hereby Borrower shall be reasonably satisfactoryin compliance in all material respects with all of its respective covenants and obligations under this Agreement, and the Borrower shall be in form compliance in all material respects with all of its covenants and substance, to Lender's counsel; obligations under the Note; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note Notice of Borrowing described in Section 2.2(a); (c) The following documents shall have been delivered to the Lender or Bailee with respect to the Pledged Assets: (i) the original documents described in Section 3.2 hereof, (ii) a copy of the executed Pooling and Servicing Agreement governing the Pledged Assets and/or any supplements thereto, and the offering documents related to the Pledged Assets, each certified by the Borrower or the Trustee or master servicer under such Pooling and Servicing Agreement as a true, correct and complete copy of the original, and all blanks appropriately completedancillary documents required to be delivered to the certificateholders under such Pooling and Servicing Agreement, executed and (iii) copies of distribution statements delivered to the Trustee for two months prior to the month in which the Request for Borrowing is made, if any, certified by an authorized signer for Borrower; the applicable servicer or master servicer as true and correct; (d) Financing statements on Form UCC-1 naming the Borrower as "debtor" and Lender as "secured party" and describing the Collateral as "collateral" thereunder, to be filed in each jurisdiction in which it is necessary to file to perfect a security interest in Collateral; (e) U.S. Bank National Association shall have maintained its financial condition consented in a manner satisfactory writing to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than Lender's subordinate interest in the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospectsOther Assets; and (f) With respect to the Financing Statement collections received by the Borrower on the underlying Mortgage Loans, U.S. Bank National Association shall have agreed to set up a tri-party agreement or similar agreement (the "Tri-Party Agreement") whereby, upon the Borrower's failure to make a weekly remittance as required under Section 6 herein, the Lender would have control over the account into which such collections are deposited, which agreement shall be assigned of record evidenced by a written agreement with terms mutually acceptable to the Lender; and (g) the Lender shall have received written instructions from , the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderand U.S. Bank National Association.

Conditions Precedent to the Loan. The obligation of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction Each of the following conditions, unless waived in writing by the Lender: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby items shall be reasonably satisfactoryindependent conditions precedent to Bank’s (and with respect to subparagraph (vi), in form Borrower’s) obligation to proceed with the funding and substance, to Lender's counsel; (b) closing of the Lender shall have received Loan: (i) certificates by an authorized officer Proper execution and delivery of a loan agreement, and the other Loan Documents in form satisfactory to Bank which shall embody the terms hereof together with the customary and usual representations and warranties applicable to the Borrower’s existence, financial condition, title to its assets, lack of encumbrances, lien position and enforceability of security interest in favor of Bank; (ii) Certificate that there has not been any material adverse change in the security or representative the financial condition of Borrower upon which from that reflected on the Lender may conclusively rely until superseded by similar certificates delivered Borrower’s financial statement most recently furnished to Bank prior to the Lender, date of this Commitment Letter; (iii) Certificate of the Borrower disclosing pending material litigation against Borrower; (iv) Certificate of the Borrower certifying that (1) all requisite action taken in connection with Borrower has not committed any act or suffered to exist any condition that would have breached the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority warranties or covenants of Borrower’s authorized signers executing or created a default under the Loan Documents, had the Loan Documents been in effect as of the date hereof; (v) Bank’s review and approval of the association and club documents governing the Borrower, including, without limitation, the Declaration. (vi) Approval of this Commitment Letter by: (x) a majority of the Noteholders of the Note Purchase Agreement; and (ii) such other documents as a majority of the Lender may reasonably require Borrower’s shareholders, each by November 15, 2012. In the event Borrower has not notified Bank in writing by November 15, 2012, that these conditions have not been satisfied, then these conditions shall be deemed waived by Borrower. In the event Borrower notifies Bank in writing that these conditions have not been satisfied by November 15, 2012, then this Commitment Letter shall be deemed terminated and Bank shall refund any deposits paid to be executed bydate, or delivered on behalf of, Borrower; (c) less all of the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory Bank’s third party fees incurred to the Lender (it being understood that Borrower has ceased operationsdate of termination including, is currently without funds other than the Loan and that the Loan will notlimitation, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditorsreasonable attorneys’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderfees.

Conditions Precedent to the Loan. The obligation of the Lender to disburse advance the Initial Advance and to fund the Certificate of Deposit shall be Loan is subject to satisfaction (or waiver by the Lender in its sole discretion) of each of the following conditionsconditions precedent. (a) The Lender or its counsel shall have received the following, unless waived in writing with each Instrument dated on or no more than three (3) days prior to the date of the proposed Loan (or as otherwise agreed by the Lender: (a) all legal matters ), and all Transaction Documents incident in form and substance as shall be satisfactory to the transactions contemplated hereby shall Lender: (i) this Agreement, duly executed by the Borrower and the applicable Credit Parties; (ii) the Promissory Note, duly executed by the Borrower, payable to the order of the Lender; (iii) each of the Security Documents, each duly executed by the applicable Credit Party, together with any financing statements, filings or other Instruments for filing or registration, notarizations thereof, notices with respect thereto or other Instruments, including applicable estoppel letters, determined by the Lender, acting reasonably, to be reasonably satisfactorynecessary or desirable to establish, maintain and perfect the Liens established pursuant to the Security Documents; (iv) to the extent not specifically referenced, each other Loan Document, duly executed by the applicable Credit Party or its Subsidiaries, as appropriate; (v) an Omnibus Certificate for each Credit Party, duly executed by an officer thereof, substantially in the form of Exhibit A hereto; (vi) a Notice of Borrowing, duly executed by an officer of the Borrower, substantially in the form of Exhibit B hereto; (vii) a certificate for each Credit Party from its jurisdiction of incorporation or organization confirming the due organization and good standing of such Credit Party in such jurisdiction, as applicable; (viii) an opinion of legal counsel to the Credit Parties, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered substance acceptable to the Lender, certifying acting reasonably; (ix) security legal opinions from legal counsel to each Credit Party, in form and substance acceptable to the Lender, pertaining to the validity of the Security Documents and the security interests granted thereby and the perfection of such security interests; (x) accurate and complete copies of the financial statements of the Credit Parties referred to in Section 6.1(g); (xi) evidence satisfactory to the Lender that all Shares issuable pursuant to this Agreement have been authorized for issuance and all provisions pertaining to the issuance of Shares to the Lender contained in this Agreement comply with applicable Governmental Requirements, including applicable Securities Laws and that such issuance of Shares shall comply with applicable Governmental Requirements, including applicable Securities Laws; and (1xii) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other approvals, opinions, documents or Instruments as the Lender may reasonably require to request. (b) all representations and warranties made by the Credit Parties herein and in any other Loan Document shall be executed by, or delivered on behalf of, Borrower; true and correct; (c) all approvals, consents and authorizations of Governmental Authorities or other Persons required in connection with this Agreement and the Lender other Loan Documents, if any, shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; been obtained and remain in effect; (d) there shall be no pending or threatened (in writing) action or proceeding before any Governmental Authority against or affecting any Credit Party or any Project which could reasonably be expected to have a Material Adverse Effect on any Credit Party; (e) the Borrower shall have maintained its financial condition delivered to the Lender a copy of the current Work Program and Budget, which has been approved by the Board of Directors of the Borrower and is in a manner form and substance satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; Lender; (f) the Financing Statement since December 31, 2011, there shall have been no change, event or occurrence that has had, or could reasonably be assigned of record expected to the Lender; and have, a Material Adverse Effect on any Credit Party or on any Material Project; (g) the Lender shall have received written instructions received, in form and substance satisfactory to the Lender, search results from all relevant jurisdictions wherein a Credit Party conducts business or owns property, pertaining to all Lien filings, registrations and records appearing in such jurisdiction, together with copies of any documents, filings and Instruments on file in such jurisdictions; (h) all data, reports, maps, surveys, financial statements, Instruments and other information requested by the Borrower with respect to disbursement Lender for its due diligence shall have been provided, and the Lender shall have completed its due diligence investigation of the proceeds Credit Parties and the Projects in scope, and with results, satisfactory to the Lender; (i) the Lender shall have received all internal investment committee approvals necessary to consummate the transactions contemplated by this Agreement; (j) the Lender shall be satisfied with the form of the Loan then disbursable hereunderDocuments; (k) the Credit Parties shall have made all public disclosures and submitted all applications, reports and information, and taken all other actions necessary, to comply fully with applicable Securities Laws, and the Lender shall have confirmed such compliance to its satisfaction; (l) each Credit Party has performed and complied with all agreements and conditions herein and in the other Loan Documents required to be performed and complied with on or prior to the date of the proposed Loan, except those agreements and conditions waived by the Lender; (m) no Default or Event of Default shall have occurred and be continuing on such date or after giving effect to such Loan; (n) there shall not exist any litigation, investigation, bankruptcy or insolvency, injunction, order or claim affecting or relating to any Credit Party or its Subsidiaries, or any Project, which has had, or could reasonably be expected to have, a Material Adverse Effect, or which could reasonably be expected to affect the legality, validity or enforceability of this Agreement or any other Loan Document, that has not been settled, dismissed, vacated, discharged or terminated; and (o) all such other approvals, opinions, certificates, documents or Instruments as the Lender may reasonably request. The Borrower’s tender of a Notice of Borrowing shall be deemed to constitute a representation and warranty by the Borrower as of the date of the Loan that the conditions precedent in paragraphs (a) through (o) of this Section 5.1 have been, and remain, satisfied.

Conditions Precedent to the Loan. (a) The obligation of the Lender to disburse make the Initial Advance and to fund the Certificate of Deposit shall be Loan hereunder is subject to satisfaction of the following conditions, unless waived in writing conditions precedent: (i) Receipt by the Lender of the following items, each in form and substance satisfactory to the Lender: : (aA) all legal matters executed counterparts of this Agreement, duly executed and all Transaction Documents incident delivered by the parties hereto; (B) executed counterparts of the Account Control Agreement, duly executed and delivered by the Borrower and the Intermediary; (C) executed copies of the First Lien Indenture, the Second Lien Indenture and the Notes; (D) Permitted Collateral with a value of not less than the Required Collateral Amount, calculated after giving effect to the making of the Loan on the Closing Date; (E) evidence that the Liens created hereunder have been perfected; (i) a true, correct and complete copy of resolutions of the board of directors of the Borrower authorizing the transactions contemplated hereby shall be reasonably satisfactoryhereby, certified as of the Closing Date by the secretary or an assistant secretary of the Borrower and (ii) the Organization Documents of the Borrower and each of the Guarantors as in effect on the Closing Date, certified by the secretary or assistant secretary of the Borrower or the applicable Guarantor as of the Closing Date, with, in form the case of the Borrower, the certificate of incorporation certified as of a recent date by the Secretary of State of the State of Delaware; (G) A good standing certificate dated as of a recent date for the Borrower and substanceeach Guarantor from the secretary of state of such Person’s state of organization; (H) a certificate signed by a Responsible Officer of the Borrower, to Lender's counsel; (b) dated as of the Lender shall have received date hereof, stating that (i) certificates the representations and warranties in Section 3 delivered on the date hereof are true and correct in all material respects (except for representations and warranties which are qualified by a materiality qualifier, which shall be true and correct in all respects) on and as of the Closing Date with the same effect as if made on and as of the Closing Date (except to the extent such representations and warranties expressly refer to an authorized officer earlier date, in which case they shall be true and correct as of such earlier date); (ii) no Default or representative Event of Borrower upon which Default exists or shall result from such issuance of the Lender may conclusively rely until superseded by similar certificates delivered Loans and the proposed or actual use of the proceeds of the issuance of the Loans; and (iii) except as disclosed in SEC Filings, since December 31, 2013 there has occurred no event or circumstance (other than changes in commodity prices) that has resulted or would reasonably be expected to result in a Material Adverse Effect; and (I) a favorable opinion of Xxxxxxxxx & Xxxxxxxx LLP, counsel to the Loan Parties, addressed to the Lender, certifying that (1) all requisite action taken in connection with as to the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing matters concerning the Loan Documents, Parties and (ii) such other documents the Loan Documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; request. (cii) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless Consummation of the transactions contemplated by the Asset Note Purchase and Exchange Agreement are consummatedto occur on the Closing Date. (iii) Payment of the Existing Indebtedness in full substantially contemporaneously with the consummation of the funding of the Loan, satisfy all of Borrower’s known creditors’ claimsand after giving effect to the foregoing, the Borrower and Guarantors do not have any debt for borrowed money outstanding other than (1) the First Lien Notes (as defined in the Note Purchase and Exchange Agreement), (2) the Initial Second Lien Notes (as defined in the Note Purchase and no material adverse change Exchange Agreement), (3) the Loan and (4) the Existing Notes (other than the Subject Notes). (iv) All government and third party approvals (including any consents) necessary in connection with continuing operations of the Borrower and its Subsidiaries and the transactions contemplated by the Loan Documents shall have occurred been obtained and be in Borrower’s financial condition full force and effect. No Governmental Authority of competent jurisdiction shall have issued, promulgated, enforced or prospects; entered any order, temporary restraining order, preliminary or permanent injunction, or other legal restraint or prohibition that is continuing and which prevents the consummation of the transactions contemplated by the Loan Documents. (fv) Payment in cash in full by the Financing Statement shall be assigned Borrower of record all fees, costs and expenses owed pursuant to this Agreement or otherwise agreed in writing by the parties hereto, in each case to the Lender; extent then due and (g) payable on the Lender shall have Closing Date and for which an invoice has been received written instructions from by the Borrower with respect to disbursement of at least one Business Day before the proceeds of the Loan then disbursable hereunderClosing Date.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and Loan to fund the Certificate of Deposit shall be made by it hereunder is subject to the satisfaction or the waiver by the Lender of the following conditions, unless waived in writing by the Lender: conditions precedent: (a) The Lender shall have received: (i) this Agreement, duly executed and delivered by an authorized officer of the Borrower; and (ii) the Note, duly executed and delivered by an authorized officer of the Borrower. (b) The Lender shall have received: (i) audited consolidated financial statements of the Borrower for the two most recent fiscal years ended prior to the Closing Date as filed with the SEC; (ii) unaudited interim consolidated financial statements of the Borrower as filed with the SEC for each fiscal quarter ended after the date of the latest applicable financial statements delivered pursuant to clause (i) of this Section 4.1(b) as to which such financial statements are available, and such financial statements shall not, in the reasonable judgment of the Lender, reflect any material adverse change in the consolidated financial condition of the Borrower, as reflected in the audited consolidated financial statements described in clause (i) of this Section 4.1(b); and (iii) copies of all legal matters correspondence with the SEC since October 1, 2015 relating to any investigation or possible or proposed enforcement action against the Borrower or any of its Affiliates. (c) All governmental and third party approvals necessary in connection with the Borrower’s consummation of the transaction contemplated hereby shall have been obtained and be in full force and effect, and all Transaction applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby. (d) The Lender shall have received the Origination Fee, and all expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Closing Date. All such amounts will be paid with proceeds of the Loan made on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Lender on or before the Closing Date. (e) Except as disclosed to Lender on Schedule 4.01(e), there shall have occurred no Material Adverse Effect since December 31, 2015. (f) The Lender shall have received, in form and substance satisfactory to it, a certificate of the Borrower, certified by a secretary of the Borrower, dated the Closing Date, including: (i) the articles of incorporation of the Borrower certified by the relevant authority of the jurisdiction of organization of the Borrower; (ii) the code of regulations of the Borrower as in effect on the date on which the resolutions referred to below were adopted; (iii) resolutions of the board of directors of the Borrower approving the transaction and the Loan Documents; (iv) a certification that the names and signatures of the officers of the Borrower authorized to sign the Loan Documents and other documents to be delivered hereunder and thereunder are true and correct; and (v) a good standing certificate for the Borrower from its jurisdiction of organization. (g) The Lender shall have received the legal opinion of Kxxxxxx Jxxxxxx & Kxxxxx LLP, counsel to the Borrower and its Subsidiaries covering such matters incident to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents this Agreement as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderrequire.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and Loan to fund the Certificate of Deposit shall be made by it hereunder is subject to the satisfaction or the waiver by the Lender of the following conditions, unless waived in writing by the Lender: conditions precedent: (a) all legal matters The Lender shall have received: (i) this Agreement, duly executed and all Transaction Documents incident delivered by an authorized officer of the Borrower; and (ii) the Note, duly executed and delivered by an authorized officer of the Borrower. (b) The Lender shall have received: (i) audited consolidated financial statements of the Borrower for the two most recent fiscal years ended prior to the transactions Closing Date as filed with the SEC; (ii) unaudited interim consolidated financial statements of the Borrower as filed with the SEC for each fiscal quarter ended after the date of the latest applicable financial statements delivered pursuant to clause (i) of this Section 4.1(b) as to which such financial statements are available, and such financial statements shall not, in the reasonable judgment of the Lender, reflect any material adverse change in the consolidated financial condition of the Borrower, as reflected in the audited consolidated financial statements described in clause (i) of this Section 4.1(b); and (iii) copies of all correspondence with the SEC since December 31, 2013 relating to any investigation or possible or proposed enforcement action against the Borrower or any of its Affiliates. (c) All governmental and third party approvals necessary in connection with the Borrower’s consummation of the transaction contemplated hereby shall have been obtained and be reasonably satisfactoryin full force and effect, in form and substanceall applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, to Lender's counsel; prevent or otherwise impose adverse conditions on the financing contemplated hereby. (bd) the The Lender shall have received (i) certificates satisfactory evidence that all amounts owed by an authorized officer the Borrower to Energy West, Incorporated, whether or representative not currently due and payable, shall have been paid in full, or will be paid in full from the proceeds of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documentshereunder, including a flow of funds statement showing the use and distribution of the proceeds of the Loan. (iie) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the The Lender shall have received the Note with Origination Fee, and all blanks appropriately completed, executed by an authorized signer expenses for Borrower; which invoices have been presented (d) Borrower shall have maintained its financial condition in a manner satisfactory to including the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan reasonable fees and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all expenses of Borrower’s known creditors’ claimslegal counsel), and no material adverse change shall have occurred in Borrower’s financial condition on or prospects; (f) before the Financing Statement shall Closing Date. All such amounts will be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower paid with respect to disbursement of the proceeds of the Loan then disbursable hereundermade on the Closing Date and will be reflected in the funding instructions given by the Borrower to the Lender on or before the Closing Date.

Conditions Precedent to the Loan. The obligation (a) As a condition precedent to the borrowing of the Loan hereunder, the Lender must receive the following from the Borrower in form reasonably satisfactory to disburse the Initial Advance Lender and, except for items (i) and (ii) below, dated as of the date of the borrowing of the Loan (it being agreed that the forms delivered to fund the Administrative Agent under the Incorporated Agreement, with such changes as are appropriate to refer to this Agreement, are satisfactory to the Lender): (i) this Agreement duly executed and delivered on behalf of the Borrower; (ii) if requested by the Lender at least two Business Days prior to the borrowing of the Loan, a promissory note as contemplated in Paragraph 1(d) above; (iii) a certificate signed by any Authorized Officer or Secretary or Assistant Secretary of the Borrower stating that as of the date of the borrowing of the Loan no Event of Default or Potential Default shall exist and that the representations and warranties contained in Paragraph 3 of this Agreement are true and correct on such date (including, without limitation, those incorporated herein); (iv) copies of the Certificate of Deposit Incorporation of the Borrower, together with all amendments, certified by any Authorized Officer or the Secretary or Assistant Secretary of the Borrower, and a certificate of good standing, certified on or within ten days prior to the date hereof by the Secretary of State of Delaware; (v) copies, certified by any Authorized Officer or the Secretary or Assistant Secretary of the Borrower, of its By-Laws and its Board of Directors’ resolutions, authorizing the execution, delivery and performance of the this Agreement and the Loan Documents; (vi) an incumbency certificate, executed by any Authorized Officer or the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signature of the officers of the Borrower authorized to sign the Loan Documents and to sign any other documents and notices in connection with this Agreement and to make borrowings under this Agreement (on which the Lender shall be subject entitled to satisfaction rely until informed of the following conditions, unless waived any change in writing by the Lender: Borrower); (avii) all legal matters and all Transaction Documents incident to a written opinion of the transactions contemplated hereby shall be reasonably satisfactoryBorrower’s counsel, in form and substanceXxxxx Day, to Lender's counsel; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered addressed to the Lender, certifying that ; (1viii) a notice of borrowing (in the form of Exhibit C hereto); (ix) each representation and warranty set forth or referred to in Section 3 below shall be true and correct in all requisite action taken in connection with material respects as if made on the transactions contemplated hereby has been duly authorized and date of such borrowing; and (2x) the names, signatures, and authority no Default or Event of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change Default shall have occurred in Borrower’s financial condition or prospects; (f) and be continuing on the Financing Statement shall be assigned date of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereundersuch borrowing.

Conditions Precedent to the Loan. The obligation of the initial Lender to disburse advance the Initial Advance and to fund the Certificate of Deposit Loan shall be subject to satisfaction fulfillment of the following conditions, unless waived in writing by conditions precedent on or prior to the Lender: Closing Date: (a) all legal matters and all Transaction Documents incident The Borrower shall have delivered to the transactions contemplated hereby shall be reasonably satisfactory, in form Agent the Notice of Borrowing and substance, to Lender's counsel; the Pay Proceeds Letter; (b) the The initial Lender shall have received its applicable Note duly executed by the Borrower and the initial Lender shall have received sufficient funds to make the Loan either from the issuance of commercial paper or from Credit Suisse, if requested; (c) The Agent shall have received on or before the Closing Date the following documents in form and substance satisfactory to it: (i) certificates This Agreement duly executed by an authorized officer the Borrower; (ii) The Security Agreement, together with evidence of its filing (or representative filing of Borrower upon which a customary memorandum thereof) with the Lender may conclusively rely until superseded by similar certificates delivered United States Surface Transportation Board and the Office of the Registrar General of Canada (and the favorable opinions of Xxxxxx & Xxxxxx, special Surface Transportation Board counsel to the LenderBorrower, and Xxxx & Berlis LLP, special Canadian counsel to the Borrower, delivered pursuant to subsection (vi) below shall be conclusive evidence of such filings); (iii) Certificates of insurance naming the Secured Party as additional insured and loss payee for the benefit of the Lenders, which satisfy the requirement of Section 4.2 of the Security Agreement; (iv) A certificate of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying that (1A) all requisite action taken in connection with ARI’s articles of incorporation and bylaws, (B) the resolutions of the Board of Directors of ARI approving and authorizing (i) the execution and delivery by the Borrower of the Loan Documents to which it is a party and performance by the Borrower of the transactions contemplated hereby has been duly authorized hereunder and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, thereunder and (ii) such other documents the execution and delivery by ARI of the Loan Documents to which it is a party and performance of the transactions contemplated hereunder and thereunder, (C) the certificate of formation and operating agreement of the Borrower, and (D) an incumbency certificate regarding the Responsible Officers signing on behalf of ARI for itself and in its capacity as the Lender may reasonably require sole member of the Borrower, incorporating specimen signatures; (v) A certificate of an officer of ARLLA and AR Leasing, which is the sole member of ARLLA, certifying (A) AR Leasing’s certificate of formation and operating agreement, (B) the resolutions of the Executive Committee of AR Leasing approving and authorizing (i) the execution and delivery by ARLLA of the Loan Documents to be executed bywhich it is a party and performance by ARLLA of the transactions contemplated thereunder and (ii) the execution and delivery by AR Leasing of the Loan Documents to which it is a party and performance by AR Leasing of the transactions contemplated thereby, (C) the certificate of formation and operating agreement of ARLLA, and (D) an incumbency certificate incorporating specimen signatures; (vi) A certificate substantially in the form of Exhibit E, of a Responsible Officer of ARI, which is the sole member of the Borrower, certifying (A) that no event has occurred and is continuing, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless would result from the transactions contemplated by the Asset Purchase Loan Documents, which constitutes a Default or Event of Default and (B) that all of the representation and warranties of the Borrower set forth in Section 4.1 of this Agreement are consummatedtrue and correct in all material respects; (vii) Favorable opinions dated the Closing Date and addressed to the Lenders of each of: (A) special counsel to the Borrower or its Affiliates (including opinions of special counsel addressing bankruptcy “true sale” or “absolute assignment” and non-consolidation matters); (B) Xxxxxx & Xxxxxx, satisfy all special Surface Transportation Board counsel to the Borrower and (C) Xxxx & Berlis LLP, special Canadian counsel to the Borrower; (viii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and the Secured Party as secured party, covering the Collateral and (ii) naming ARI, as debtor and the Borrower’s known creditors’ claims, as secured party (and the Secured Party, as assignee secured party from the Borrower), covering the Equipment and no material adverse change Equipment Leases transferred in accordance with the Contribution and Sale Agreement, in each case to be filed and recorded with the office of the Secretary of State of the State of Delaware on behalf of the Secured Party; (ix) A duly executed letter from the Borrower to the Collateral Agent authorizing the Collateral Agent to attach the legend described in Section 5.2 of the Security Agreement to each Equipment Lease; (x) A copy of the Appraisal that is to be the basis of the determination of the Fair Market Value of the Equipment as of the Closing Date; (xi) Either (A) copies of recent good standing certificates of each of the Borrower and ARI and AR Leasing, certified by the Delaware Secretary of the State (in the case of the Borrower and AR Leasing) and the North Dakota Secretary of State (in the case of ARI), or (B) originals of such good standing certificates certified by the respective states of formation or incorporation, as the case may be, all as reasonably acceptable to the Agent; (xii) Certified copies of (i) the Management Agreement, (ii) the Collateral Agency Agreement, (iii) the Contribution and Sale Agreement, and (iv) the Lease Administration Agreement; (xiii) Evidence of the execution and delivery by the Borrower and AR Leasing, as “Manager” under the Lease Administration Agreement, of documents required under Section 17 of the Lease Administration Agreement in respect of the joinder of the Borrower as a new Tranche II Owner and the identification of the Agent as representative of the Lenders and of AR Leasing as an additional Applicable Manager, including (A) a joinder signature page of the Borrower and (B) a Tranche II Owner Notice in the form of Exhibit B to Lease Administration Agreement, including (i) Annex 1: List of additional Tranche II Owner Cars of the Borrower as additional Tranche II Owner (supplementing Exhibit A to the Lease Administration Agreement) and (ii) Annex 2 (supplementing Exhibit O to the Lease Administration Agreement), it being understood that in executing this Agreement, the Agent, the Borrower and initial Lender agree that AR Leasing shall not be required to deliver (1) a notice to the “Users” in the form of Exhibit B to the Lease Administration Agreement, (2) a notice to each relevant railroad or (3) a notice to the Official Railway Equipment Registry concerning the new Tranche II Owner Cars, as set forth in Section 3.3 of the Lease Administration Agreement; (xiv) Evidence of the deliveries required under Section 9(d) of the Collateral Agency Agreement, including (A) a joinder signature page of the Borrower thereto as a new “Pledgor” thereunder and (B) a Notice of Additional Party to Collateral Agency Agreement executed by the Borrower and AR Leasing in form of Exhibit A to the Collateral Agency Agreement, including (i) Schedule 1: additional Collateral Documents (if applicable) and (ii) Schedule 2: Notice Addresses; (xv) A security interest perfection certificate of the Borrower, duly executed by an officer of the Borrower; (xvi) A security interest perfection certificate of ARI, duly executed by an officer of ARI; (xvii) A copy of the Securities Account Control Agreement executed by each party thereto; and (xviii) the side letter referred to in Section 2.15 executed by the Borrower and the Agent. (d) The Borrower shall have occurred made arrangements reasonably satisfactory to the Agent to pay for all filing fees and expenses incurred in Borrower’s financial condition connection with the filing of the Security Agreement (or prospects; customary memorandum thereof) with the United States Surface Transportation Board and the Office of the Registrar General of Canada, and the UCC-1 Financing Statements (as described above in Section 3.1(c)(vii)) with the Secretary of the State of the State of Delaware. (e) The Borrower shall have (i) delivered or made arrangements to deliver the original Equipment Leases to the Collateral Agent in accordance with Section 5.2 of the Security Agreement and (ii) authorized the Collateral Agent to legend such original Equipment Leases in the manner described in Section 5.2 of the Security Agreement. (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender The Agent shall have received written instructions from evidence satisfactory to it that the Equipment and Equipment Leases to be conveyed to the Borrower with respect to disbursement on the Closing Date constitute part of the proceeds of the Loan then disbursable hereunderIntended Securitization Portfolio.

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance Loan specified in Section hereof is subject, to the fulfillment and to fund the Certificate of Deposit shall be subject to satisfaction of the each of the following conditions, unless waived in writing by conditions precedent on or before the Lender: Loan Date: (a) all legal matters and all Transaction Documents incident to the transactions contemplated hereby The Loan Date shall be reasonably satisfactoryoccur on or before June 30, in form and substance, to Lender's counsel; 1997; (b) the Lender shall have received (i) certificates by an authorized officer or representative of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Aircraft Secured Promissory Note with all blanks appropriately completed, duly executed by an authorized signer for Borrower; Borrower to the order of Lender; (c) The Aircraft Secured Promissory Note shall be in full force and effect; (d) Borrower shall have maintained its financial condition in a manner satisfactory executed, delivered and caused to be recorded the Lender Mortgage; (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (fe) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Articles of Incorporation (and any amendments thereto) of the Borrower; (f) Lender shall have received a signature and incumbency certificate for the officers of the Borrower with respect who will execute this Agreement, the Aircraft Secured Promissory Note, the Related Documents, and the other documents contemplated herein or therein to disbursement which Borrower is a party, which certificate has been certified by the secretary of the proceeds Borrower; (g) Lender shall have received the written opinion of the Legal Counsel for Borrower, in form and substance satisfactory to Lender and its counsel, Exhibit C attached hereto; (h) No Event of Default or Unmatured Event of Default shall have occurred and be continuing on the date of the Borrowing of the Loan then disbursable hereunder.nor shall either result from the making of the Borrowing of the Loan; 10 11 (i) Except as set forth in Exhibit D attached hereto and incorporated herein by this reference, there is no litigation or proceeding pending or threatened against or affecting Borrower, the result of which might materially affect the financial condition, business or operations of Borrower, and there has been no materially adverse change in the financial condition of Borrower since the date of execution of this Agreement; and

Conditions Precedent to the Loan. The obligation of the Lender to disburse make the Initial Advance and to fund the Certificate of Deposit shall be Loan is subject to satisfaction of the following conditions, unless waived in writing by the Lender: conditions precedent: (a) all legal matters and all Transaction Documents incident There shall have occurred no Material Adverse Change since December 31, 1998. (b) There shall exist no action, suit, investigation, litigation or proceeding affecting the Borrower and/or any of its Subsidiaries or, to the knowledge of the Borrower, threatened before any court, governmental agency or arbitrator that (i) is reasonably likely to have a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of this Agreement, the Note, any other Loan Document or the consummation of the transactions contemplated hereby or thereby. (c) The Lender shall be reasonably satisfactoryhave received on the Closing Date, each dated such day (unless otherwise specified), in form and substance, substance satisfactory to the Lender (unless otherwise specified) and (except for the Note) in sufficient copies for the Lender's counsel: (i) The Note of the Borrower to the order of the Lender; (bii) This Agreement; (iii) The Collateral Documents: and (iv) The Title Insurance Policy. The Lender shall have received such evidence as the Lender may deem satisfactory that all necessary filing fees, and all taxes and other expenses related to such documents and filings, have been paid in full, or such amounts have been delivered to the Lender. (d) The Lender shall have received certified copies of all corporate action taken by the Borrower approving each Loan Document to which it is a party, and of all documents evidencing all other necessary corporate action and Governmental Approvals, if any, with respect to each such Loan Document. (e) The Lender shall have received a certificate of the Secretary or Assistant Secretary of the Borrower certifying the names and true signatures of the officers of the Borrower authorized to sign each Loan Document to which it is a party and the other documents to be delivered by it hereunder. (f) The Lender shall have received certificates of good standing acceptable to the Lender showing that the Borrower is in good standing in the Commonwealth of Puerto Rico and a copy certified by the Secretary or the Assistant Secretary of the Borrower dated not more than thirty (30) days prior to the date of execution of this Agreement of the Articles of Incorporation and By-Laws of the Borrower. (g) A certificate of the Borrower, signed on behalf of the Borrower by an authorized officer of the Borrower, dated the Closing Date, certifying as to (A) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the date of the Closing Date, and (B) the absence of any event occurring and continuing, or resulting from the Loan, that constitutes a Default. (h) Such financial, business and other information regarding the Borrower as the Lender shall have received requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under ERISA and welfare plans, collective bargaining agreements and other arrangements with employees, annual financial statements for the Borrower dated as of December 31, 1998, and interim financial statements for the Borrower dated the end of the most recent fiscal quarter for which financial statements are available. (i) certificates Payment by an authorized officer or representative of the Borrower upon which to the Lender may conclusively rely until superseded by similar certificates delivered to of all reasonable costs and expenses of the LenderLender (including, certifying that (1without limitation, attorney's fees) all requisite action taken incurred in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents and the consummation of the transactions contemplated hereby and thereby. (j) The representations and warranties contained in each Loan Document are true and correct in all material respects on and as of the date of the Loan before and after giving effect to the Loan and to the application of the proceeds therefrom. (k) No event has been duly authorized occurred and is continuing, or would result from the Loan, or from the application of the proceeds therefrom, which constitutes a Default. (21) The Lender shall have received copies of all consents, licenses, approvals and Governmental Permits, if any, obtained by the namesBorrower in connection with the execution, signaturesdelivery, performance, validity and enforceability of the Loan Documents and the use, occupancy and operation of the Property, and authority all such consents, licenses, approvals and Governmental Permits shall be in full force and effect. (m) The Borrower shall have delivered to the Lender certificates of Borrower’s authorized signers executing insurance or the Loan insurance policies required hereunder and/or under the Collateral Documents. (n) The Lender shall have received an appraisal report of the Property prepared by a licensed appraiser acceptable to the Lender and in form and substance and showing a value acceptable to the Lender. (o) The Lender shall have received copies of all Lease Agreements and a schedule summarizing the terms and conditions thereof, and they shall be acceptable to the Lender. (iip) There shall be no eminent domain or similar proceedings pending or affecting the Property. (q) The Lender shall have received satisfactory evidence that all taxes and levies imposed upon the Property are fully paid and current. (r) The Lender shall have received such other approvals, consents, waivers, opinions or documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; (c) the Lender shall have received the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition in a manner satisfactory to the Lender (it being understood that Borrower has ceased operations, is currently without funds other than the Loan and that the Loan will not, unless the transactions contemplated by the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims), and no material adverse change shall have occurred in Borrower’s financial condition or prospects; (f) the Financing Statement shall be assigned of record to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunderrequest.

Conditions Precedent to the Loan. The obligation As conditions precedent to Lender's making of the Lender to disburse the Initial Advance and to fund the Certificate of Deposit shall be subject to satisfaction of Loan, the following conditions, unless waived in writing by shall occur prior to or at the Lender: Closing: (a) all legal matters the Borrower shall have duly and all Transaction Documents incident validly issued, executed and delivered the Note and the Warrant to the transactions contemplated hereby shall be reasonably satisfactory, in form and substance, to Lender's counsel; ; (b) the Lender Borrower shall have received paid to David S. Hunt a finder's fee of CDN$00,000.00 (iXS$37,500.00) certificates by an authorized officer or representative in the form of Borrower upon which the Lender may conclusively rely until superseded by similar certificates delivered 350,000 Shares issued to the Lender, certifying that (1) all requisite action taken in connection with the transactions contemplated hereby has been duly authorized and (2) the names, signatures, and authority him at a deemed price of Borrower’s authorized signers executing the Loan Documents, and (ii) such other documents as the Lender may reasonably require to be executed by, or delivered on behalf of, Borrower; CDN$0.15 per Share; (c) the Borrower shall have effected the appointment or election of one Lender-designated person to the Borrower's Board of Directors; (d) the Borrower shall have entered into a three-year employment agreement with William G. Jayroe on terms and condxxxxxx xxxxxxxxxx to the Lender; (e) the Borrower shall have consummated the Private Placement on terms and conditions acceptable to the Lender; (f) the Borrower shall have terminated the Shareholder Protection Rights Plan; (g) Hector Dominguez and Camuri Holding XXX xxxxx xxxx entered into an agreement not to reduce their respective holdings of Shares on terms and conditions acceptable to the Lender; (h) the Borrower shall have paid in full the Expenses specified in Section 4.11(a) and (b) in cash by wire transfer of such funds to such account as the Lender shall have received designated; (i) the Note with all blanks appropriately completed, executed by an authorized signer for Borrower; (d) Borrower shall have maintained its financial condition repaid in full all amounts owing under the Existing TOSI Loan in cash by wire transfer xx xuch funds to such account as the Lender shall have designated; and (j) the Borrower shall have made the following additional deliveries to the Lender: (i) to the extent that the Province of Alberta issues such documents or their respective analogues, certificates of existence and good standing of the Borrower in the Province of Alberta; (ii) a manner certificate of the Secretary or Assistant Secretary of the Borrower certifying (A) the Borrower's charter and bylaws, (B) duly adopted resolutions of the Borrower's board of directors in form and substance satisfactory to the Lender with respect to the authorization of this Agreement, the Note, the Warrant and the Ancillary Documents to which the Borrower is a party, and the officers of the Borrower authorized to sign such instruments, and (it being understood C) specimen signatures of the officers so authorized; (iii) a certificate of the Secretary or Assistant Secretary of each Subsidiary that Borrower has ceased operations, is currently without funds other than guaranteeing the Loan certifying (A) such Subsidiary's charter and that bylaws, (B) duly adopted resolutions of such Subsidiary's board of directors in form and substance satisfactory to the Loan will not, unless Lender with respect to the transactions contemplated by authorization of the Asset Purchase Agreement are consummated, satisfy all of Borrower’s known creditors’ claims)Ancillary Documents to which such Subsidiary is a party, and no material adverse change shall have occurred in Borrower’s financial condition or prospectsthe officers of such Subsidiary authorized to sign such instruments, and (C) specimen signatures of the officers so authorized; (fiv) a legal opinion of the Financing Statement shall be assigned of record Borrower's legal counsel addressed to the Lender in form and substance satisfactory to the Lender; and (g) the Lender shall have received written instructions from the Borrower with respect to disbursement of the proceeds of the Loan then disbursable hereunder.;