Common use of Conditions to Obligations of the Investors Clause in Contracts

Conditions to Obligations of the Investors. The obligation of each Investor to consummate the First Closing (or the Second Closing) is subject to the satisfaction or waiver by such Investor, of the following conditions: (a) the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations shall be true and correct in all respects on and as of the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (d) the Company shall have performed or complied in all material respects with all obligations, covenants, agreements and conditions in this Agreement required to be performed or complied with by the Company on or prior to the such Closing; (e) there shall have been no event, occurrence, development or state of circumstances or facts that constitutes a Material Adverse Effect; (f) the Company shall have duly executed and delivered to each Investor each of the items set forth in Section 2.05(b) of this Agreement; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions shall have been duly completed and satisfactory in substance and form to each Investor, and each Investor shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request; (h) from the date hereof to such Closing, trading in the ADSs shall not have been suspended by the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened); (i) the sale and issuance of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor and the Company are subject; (j) each Investor shall have received a certificate signed by an executive officer of the Company confirming the satisfaction of items (a) through (i) above; and (k) the Designated Bank Account shall have been established and the signatories to the Designated Bank Account shall have been changed in accordance with Section 6.07(b).

Conditions to Obligations of the Investors. The obligation obligations of each Investor to consummate the First Closing (or the Second Closing) is Purchase shall be subject to the satisfaction (or waiver by such Investorwaiver, which shall not be effective against any Investor who does not consent in writing thereto), on or prior to the Closing Date, of the following conditions: (a) Each representation and warranty made by the Corporation herein shall be true and correct, in all material respects (except for such representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or their terms by reference to Material Adverse Effect or materiality, which representations and warranties as so qualified shall be true and correct in all respects respects), on and as of the date hereof Clos- ing Date, with the same force and effect as though such representation and warranty had been made on and as of the Closing (Date, except for changes permitted or contemplated by this Agreement and except for each representation and warranty that those representations and warranties that address matters only is made as of a particular specific date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect time, which shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters respects, only as of a particular such specific date or time. (b) The Corporation shall have been true and correct only on such date); (c) the Fundamental Company Representations shall be true and correct in all respects on and as of the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (d) the Company shall have performed or complied in all material respects with all obligations, covenants, its agreements and conditions in this covenants contained herein or the Shareholders Agreement required to be performed or complied with by the Company on at or prior to the Closing to the extent such agreements and covenants relate to the Closing;. (c) The Corporation shall have delivered to the Investors a certificate executed by a senior executive officer of the Corporation, which shall be satisfactory in form and substance to the Investors, certifying that the conditions set forth in paragraphs (a) and (b) have been met. (d) The Corporation shall have delivered to the Investors a certificate of the Corporate Secretary of the Corporation, in form and substance satisfactory to the Investors, certifying (i) a copy of the Articles of Continuance of the Corporation and all amendments thereto, certified by the Director under the Canada Business Corporations Act, (ii) the By-Laws of the Corporation, (iii) a Certificate of Status for the Corporation issued by the Director under the Canada Business Corporations Act and similar certificates for other WFI Entities issued by the relevant Governmental Authority, (iv) resolutions of the board of directors of the Corporation (the "Board of Directors") authorizing the execution, delivery and performance by the Corporation of this Agreement, the Shareholders Agreement, the Registration Rights Agreements, the Articles of Incorporation, any other agreement entered into or instrument delivered by the Corporation in connection herewith, and any letters entered into simultaneously with this Agreement (collectively, the "Documents") and the transactions contemplated thereby, (v) copies of each governmental or third party consent, approval or filing required to be obtained or made in order to consummate the transactions contemplated by this Agreement at the Closing, and (vi) incumbency matters. (e) there The Shareholders Agreement shall have been no event, occurrence, development or state be executed and delivered by the Corporation and each of circumstances or facts that constitutes a Material Adverse Effect;the shareholders listed on Schedule I thereto. (f) A registration rights agreement (the Company "Registration Rights Agreement") among the Corporation and the Investors in the form annexed hereto as Schedule 6.2(f) shall have be duly executed and delivered to each Investor each of by the items set forth in Section 2.05(b) of this Agreement;Corporation. (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions The Articles of Amendment shall have been duly completed and satisfactory be in substance and the form to each Investor, and each Investor shall have received all such counterpart originals or certified or other copies of such documents annexed hereto as it may reasonably request;Schedule A. (h) from No Material Adverse Effect shall have occurred in respect of the date hereof to such ClosingCorporation or any of the other WFI Entities, trading and no event or change shall have occurred which, individually or in the ADSs shall not aggregate, is reasonably likely to have been suspended by a Material Adverse Effect on the SEC Corporation or any of the Company’s principal Trading Market (nor shall such suspension have been threatened);other WFI Entities. (i) The Investors shall receive from each of XxXxxxxx Xxxx; Farris, Vaughan, Xxxxx & Xxxxxx; and Xxxxxx Xxxxxx & Xxxxxxx, counsel for the sale and issuance Corporation, an opinion addressed to the Investors, dated as of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor and Closing, in the Company are subject;forms annexed hereto as Schedule 6.2(i). (j) each Investor shall have received a certificate signed by an executive officer The composition of the Company confirming Board of Directors shall be as provided in Section 8.1 of the satisfaction of items (a) through (i) above; andShareholders Agreement. (k) the Designated Bank Account The Corporation shall have been established obtained, with financially sound and reputable insurers, directors' and officers' liability insurance in the signatories amount of at least US$5,000,000, or a binder with respect to the Designated Bank Account such insurance in form and substance satisfactory to each Investor. (l) The Corporation shall have been changed obtained signed commitment letters for a $550 million credit facility the proceeds of which will be used to finance the Hibernia Project, in accordance with Section 6.07(bform and substance satisfactory to each Investor (the "Hibernia Commitment"). (m) Each other Investor shall concurrently purchase and pay for the number of Class A Preferred Shares set forth opposite its name in Schedule 1.1. (n) There shall not have occurred any disruption or material adverse change or development affecting financial, banking, currency or capital markets in general in the United States in the reasonable opinion of the Investors. (o) With the proceeds of the Purchase Price, at Closing the Corporation shall concurrently repurchase from WFH 45,000,000 Series C Redeemable Preferred Shares for an aggregate amount of US$45,000,000 in cash.

Conditions to Obligations of the Investors. The obligation of each Investor the Investors to consummate the First Closing (or the Second Closing) is Purchase shall be subject to the satisfaction or waiver by such Investor, at or prior to the Second Closing of each of the following conditions: (a) each of the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect contained in this Agreement shall be true and correct (disregarding for this purpose all references in all respects on such representations and warranties to any materiality, Material Adverse Effect, Knowledge or similar qualifications) when made and as of the date hereof and such Second Closing (except that those to the extent such representations and warranties that address matters only are made as of a particular date date, in which case such representations and warranties shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations shall , except for failures to be true and correct which individually or in all respects on and as of the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall aggregate would not reasonably be expected to have been true and correct only on such date); (d) the Company shall have performed or complied in all material respects with all obligations, covenants, agreements and conditions in this Agreement required to be performed or complied with by the Company on or prior to the such Closing; (e) there shall have been no event, occurrence, development or state of circumstances or facts that constitutes a Material Adverse Effect; (fb) the Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Second Closing, disregarding for this purpose all references in such covenants and agreements to any materiality or similar qualifications; (c) the Certificate of Designation shall have been duly filed with the Secretary of State of the State of Delaware and shall be in full force and effect; (d) the Conversion Shares shall have been duly authorized and reserved for issuance and approved for listing on NASDAQ, subject to official notice of issuance; (e) the Company shall have duly executed and delivered to each Investor each obtained the Additional Financing; (f) the Board of Directors shall consist of ten directors, three of whom shall be the Preferred Designees, effective as of the items set forth in Section 2.05(b) of this AgreementSecond Closing; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental there shall not have occurred after December 31, 1998 any change or development or series of changes or developments (including without limitation as a result of any change in the Law) which has resulted in or could reasonably be expected to such transactions shall have been duly completed and satisfactory result individually or in substance and form to each Investor, and each Investor shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably requestthe aggregate in a Material Adverse Effect; (h) from the date hereof to such Closing, trading in the ADSs Consents set forth on Schedule 6.2(h) shall not have been suspended obtained or made by the SEC Company, without any payment or other accommodation having been or being made by the Company’s principal Trading Market Company or any of the Subsidiaries (nor shall such suspension have been threatenedexcept for the payment set forth on Schedule 6.2(h);); and (i) the sale and issuance of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor and the Company are subject; (j) each Investor shall have received a certificate signed by an executive officer of made the Company confirming the satisfaction of items (adeliveries set forth in Section 2.6(a) through (i) above; and (k) the Designated Bank Account shall have been established and the signatories to the Designated Bank Account shall have been changed in accordance with Section 6.07(b)hereof.

Conditions to Obligations of the Investors. The Each Investor’s obligation of each Investor to consummate purchase its respective Shares at the First Closing (or the Second Closing) is subject to the satisfaction fulfillment on or waiver by such Investor, prior to the Closing of the following conditions, of which conditions (a) and (b) may be waived at the option of such Investor: (a) the The representations and warranties of made by the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects on and as of the date Section 3 hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on and as of the date hereof when made, and such Closing (except that those representations representation and warranties that address matters only as of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations shall be true and correct at the Closing after giving effect to the Concurrent Transactions and the transactions contemplated hereby and by the other Transaction Documents (in all respects each case, without giving effect to any “material” or “Material Adverse Effect” qualifiers contained therein), with the same force and effect as if they had been made on and as of said date, in either case, without giving effect to any update of or modification to the Disclosure Schedule made or purported to be made after the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date);this Agreement. (db) the Company shall have performed or complied in all material respects with all obligations, All covenants, agreements and conditions contained in this Agreement required to be performed or complied with by the Company on or prior to such purchase shall have been performed or complied with in all respects, and the Company shall not be in breach or default in the performance of or compliance with any of the provisions of this Agreement or the Contribution Agreement. (c) There shall not then be in effect any legal, court or other order enjoining or restraining the transactions contemplated by this Agreement. (d) There shall not be in effect any law, rule or regulation prohibiting or restricting such Closing;purchase or requiring any consent or approval of any Person which shall not have been obtained to issue the Preferred Shares, the Common Shares or the Investor Warrants (except as otherwise provided in this Agreement). (e) there Each of the Investors shall have been no eventreceived opinions of counsel to the Company with respect to the Preferred Shares, occurrencethe Common Shares, development or state of circumstances or facts that constitutes a Material Adverse Effect;the Transaction Documents and the transactions contemplated thereby and as to such other matters, in substantially the form attached hereto as Exhibit D, and the Investors shall be entitled to rely on the opinions delivered in connection with the Contribution Agreement. (f) the The Company shall have duly executed and delivered to each Investor each filed with the Secretary of State of the items set forth State of Colorado the Articles of Amendment, and the Articles of Amendment shall be in Section 2.05(b) of this Agreement;full force and effect and shall not have been amended. (g) all All authorizations, approvals or permits, if any, of any Governmental Authority or regulatory body required in connection with the transactions contemplated by this Agreement and the other Transaction Documents, including, without limitation, lawful issuance and sale of the Shares and the Investor Warrants pursuant to this Agreement shall have been duly obtained and shall be in full force and effect on and as of the Closing. (h) All corporate and other proceedings required for in connection with the transactions contemplated hereby on such at the Closing and all documents and instruments incidental to such transactions incident thereto shall have been duly completed and be reasonably satisfactory in form and substance and form to each InvestorInvestor and to the Investors’ counsel, and they shall each Investor shall have received all such counterpart originals or and certified or other copies of such documents as it they may reasonably request; . Such documents shall include (hbut not be limited to) from the date hereof to such Closing, trading in the ADSs shall not have been suspended by the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened);following: (i) A copy of the sale Articles of Amendment, the charter and the Bylaws of the Company (as amended through the date of the Closing), certified by the Secretary of the Company as true and correct copies thereof as of the Closing. (ii) A certificate of the Secretary or an Assistant Secretary or other officer of the Company certifying the names of the officers of the Company authorized to sign this Agreement, the Transaction Documents, the certificates for the Preferred Shares, the Common Shares, and the Investor Warrants and the other documents, instruments or certificates to be delivered pursuant to this Agreement and the other Transaction Documents by the Company or any of its officers, together with the true signatures of such officers. (iii) A certificate of a Responsible Officer certifying that the conditions specified in Sections 6(a), (b), (c), (k) and (m) have been fulfilled. (iv) A copy of the resolutions of the Board of Directors and, if required, the shareholders of the Company authorizing this Agreement, the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Subscription Securities Shares and the Investor Warrants, certified by the Secretary of the Company to be true, complete and correct. (v) Good standing certificates issued by the Secretary of State of the State of Colorado dated within three days of the Closing. (i) Each of the Investors and the Company and the other parties thereto shall be legally permitted by all laws have executed and regulations delivered each of the Transaction Documents to which each Investor and the Company are subject;is a party. (j) each Investor The Company shall have received a certificate signed by an executive officer taken all necessary action for the election immediately following the Closing of the Company confirming Investors’ designees to the satisfaction Company’s Board of items (a) through (i) above; andDirectors. (k) The Company shall have obtained all authorizations, approvals, permits, if any, of any Governmental Authority or regulatory body and all consents and approvals of any third party, including but not limited, to the Designated Bank Account consents set forth on Schedule 3.6 that are required in connection with the consummation of the transactions provided for herein and in the Transaction Documents. (l) The Common Stock Purchase Agreement shall have been established amended, or shall be amended concurrently with the Closing, to reduce the number of $1.00 Warrants granted to the Purchaser thereunder by 1,860,660, the $1.50 Warrants granted to the Purchaser thereunder by 1,860,660 and the signatories $2.00 Warrants granted to the Designated Bank Account Purchaser thereunder by 1,860,661 and the Purchaser shall have exercised $1.00 Warrants for the purchase of 5,000,000 shares of Common Stock. (m) The Concurrent Transactions shall have been changed consummated or shall be consummated concurrently with the Closing in accordance with the Concurrent Transaction Agreements. If the Investors specifically waive in writing the conditions set forth in Section 6.07(b)6(a) or Section 6(b) hereof, any breach of a representation, warranty or covenant so waived in writing shall not survive the Closing.

Conditions to Obligations of the Investors. The obligation of each Investor the Investors to consummate the First Closing (or the Second Closing) is subject to the satisfaction fulfillment (or waiver by such Investor, the Investors) at the Closing of each of the following conditions: (ai) (A) the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect shall be true and correct set forth in all respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect Section 3.1 shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those for any representations and warranties that address matters only as are qualified by materiality, all of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations which shall be true and correct in all respects respects) as though made on and as of the date hereof and such Closing except for de minimis inaccuracies Date (except that those other than representations and warranties that address matters only by their terms speak as of a particular date another date, which representations and warranties shall have been be so true and correct only on as of such date); , and (dB) the Company shall have performed or complied in all material respects with all obligations, covenants, agreements and conditions in this Agreement obligations required to be performed or complied with by the Company on it under this Agreement at or prior to the such Closing; (eii) there the Company shall have filed with the Montana Secretary of State articles of amendment to which the Certificates of Designations shall have been no event, occurrence, development or state of circumstances or facts that constitutes a Material Adverse Effectattached and such filing shall have been accepted; (fiii) the Company shall have duly executed and delivered to each Investor the Investors, and each of the items set forth in Section 2.05(b) of this Agreement; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions Investors shall have been duly completed executed and satisfactory in substance and form delivered to each Investorthe Company, and each Investor shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request; (h) from the date hereof to such Closing, trading a Registration Rights Agreement in the ADSs shall not have been suspended by form attached as Annex D (the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened“Registration Rights Agreement”); (iiv) Txxxxx X. Xxxxxxx shall have been, or shall be concurrently with the Closing, appointed to the board of directors of the Company (the “Board”); (v) the sale Company shall have duly executed and delivered to the Investor Director a Director Indemnification Agreement in the form attached as Annex E (the “Director Indemnification Agreement”); (vi) no stop order or suspension of trading shall have been imposed by NYSE MKT, the Securities and Exchange Commission (the “SEC”) or any other Governmental Entity with respect to public trading of the Common Stock and the Company shall not have received any notice indicating that the Common Stock will be suspended, limited or delisted; (vii) neither the Company nor any of its Subsidiaries shall be a debtor in a bankruptcy case or have filed for bankruptcy (under title 11 of the United States Code or any other bankruptcy, receivership, or any other insolvency proceeding in any jurisdiction); (viii) since the date hereof, there shall not have occurred a Material Adverse Change; (ix) the Company shall have delivered to the Investors a good standing certificate with respect to the Company and each of its Subsidiaries issued by the Montana Secretary of State and the Colorado Secretary of State or, with respect to any such Subsidiary not incorporated or otherwise organized under the laws of the State of Montana or the State of Colorado, the applicable Governmental Entity of the jurisdiction in which such Subsidiary is organized, each dated as of a recent date; (x) the Company shall have delivered to the Investors a certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying (A) the resolutions adopted by the Board approving the Transaction Documents, the Transactions and the issuance of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor Purchased Securities, (B) the current versions of the Articles of Incorporation and the Bylaws, (C) the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company are subjectand (D) the fulfillment of the conditions specified in this Section 1.3(b); (jxi) each Investor the Company shall have received delivered to the Investors, at least two business days prior to the date hereof, a certificate signed reasonably detailed annual budget for the Company and its Subsidiaries for the 2013 fiscal year, together with a schedule detailing the use of proceeds of the Transactions, in each case in form and substance reasonably satisfactory to the Investors; provided, however, that if any revisions, supplements, corrections or other changes thereto occur between the date hereof and the Closing Date, then the Company also shall have delivered to the Investors, at least two business days prior to Closing, updated versions of such budget and schedule; (xii) the Company shall have delivered to the Investors, at least two business days prior to the Closing Date, an allocation of the total aggregate purchase price to be paid at the Closing by an executive officer the Investors pursuant to Section 1.1 among the Series A Shares, the Series B Shares and the Warrants, together with supporting documentation showing in reasonable detail the basis for such allocation, in each case in form and substance reasonably satisfactory to the Investors; (xiii) to the extent necessary or reasonably expected by the Investors to be necessary in order to be in compliance, including with respect to the Transaction, with any covenant of the Company confirming contained in the satisfaction Credit Agreement, dated as of items (a) through (i) aboveNovember 20, 2012, among the Company, Wxxxx Fargo Bank, N.A. and the lenders party thereto, the Company shall have obtained from Wxxxx Fargo, N.A. and delivered to the Investors a consent, approval or waiver, in form and substance reasonably satisfactory to the Investors; and (kxiv) the Designated Bank Account Company shall have been established delivered all other documents, certificates, instruments and writings reasonably requested by any of the signatories Investors or their counsel prior to the Designated Bank Account shall have been changed Closing as may be necessary or advisable in accordance connection with Section 6.07(b)the consummation of any of the Transactions.

Conditions to Obligations of the Investors. The obligation obligations of each Investor the Investors to consummate the First Closing (or the Second Closing) is transactions contemplated hereby shall be subject to the satisfaction or waiver by such Investor, at or prior to the Closing of each of the following conditions: (a) Each of the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect contained in this Agreement shall be true and correct in all respects on when made and as of the date hereof and such Closing (except that those to the extent such representations and warranties that address matters only are made as of a particular date date, in which case such representations and warranties shall have been true and correct only on as of such date), except for failures to be true and correct which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations shall be true and correct in all respects on and as of the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (d) the The Company shall have performed or performed, satisfied and complied in all material respects with all obligations, covenants, of its covenants and agreements and conditions set forth in this Agreement required to be performed or performed, satisfied and complied with by the Company on or prior to or at the such Closing; (c) The Company shall have delivered to the Investors an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered the Second Amended and Restated Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (e) there The Amended Certificates of Designation shall have been no event, occurrence, development or state duly approved and adopted by the common stockholders of circumstances or facts that constitutes a Material Adverse Effectthe Company pursuant to Section 228 of the DGCL and the Amended Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Amended Certificates of Designation shall be in full force and effect; (f) All Conversion Shares and the Company New Common Shares shall have been duly executed authorized and delivered reserved for issuance and such Conversion Shares and the New Common Shares shall have been approved for listing on the NMS, subject to each Investor each official notice of the items set forth in Section 2.05(b) of this Agreementissuance; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions shall have been duly completed and satisfactory in substance and form to each Investor, and each Investor The Investors shall have received all such counterpart originals or certified or other copies an opinion of such documents as it may reasonably request;Willkie Farr & Gallagher, outside counsel to the Company, with rexxxxx xx xxx dux xxxxxxxration, due authorization, validity of the New Common Shares, the valid and binding nature of this Agreement and the Securities Act exemption of the transactions contemplated hereby, the Registration Rights Agreement and the Amended Certificates of Designation; and (h) from Since the date hereof to such Closinghereof, trading in the ADSs there shall not have been suspended by the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened); occurred (i) any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the sale and issuance business, assets, financial condition, prospects, or results of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor and the Company are subject; (j) each Investor shall have received a certificate signed by an executive officer operations of the Company confirming and its Subsidiaries taken as a whole or (y) on the satisfaction ability of items the Company and such Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the transactions contemplated hereby; or (aii) through (i) above; and (k) the Designated Bank Account shall have been established and the signatories to the Designated Bank Account shall have been changed any material disruption of or material adverse change in accordance with Section 6.07(b)financial, banking or capital market conditions.

Conditions to Obligations of the Investors. The obligation obligations of each Investor the Investors to consummate the First Closing (or the Second Closing) is transactions contemplated by this Agreement shall be subject to the satisfaction fulfillment or waiver by such InvestorInvestors’ waiver, at or prior to the Closing, of each of the following conditions, as specified below: (a) the The representations and warranties of the Company (other than Partnership Parties and of the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect MCRC Parties contained in Article III shall be true and correct in all material respects on as of the Closing Date (except for such representations and warranties that are qualified by their terms by a reference to materiality, which representations and warranties as so qualified shall be true and correct in all respects) as though made at and as of the such date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such specified date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect , which shall be true and correct in all material respects on and as of that specified date). (b) Each of the date hereof Partnership Parties and such Closing (except that those representations and warranties that address matters only as of a particular date the MCRC Parties shall have been true duly performed and correct only on such date); (c) the Fundamental Company Representations shall be true and correct in all respects on and as of the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (d) the Company shall have performed or complied in all material respects with all obligationsagreements, covenants, agreements covenants and conditions in required by this Agreement required to be performed or complied with by such Parties prior to or on the Company on Closing Date. (c) On or prior to the such Closing; (e) there Closing Date, the Partnership Parties and the MCRC Parties shall have been no eventdeliver, occurrenceor cause to be delivered, development or state of circumstances or facts that constitutes a Material Adverse Effect; (f) to the Company shall have duly executed and delivered to each Investor each of the items set forth in Section 2.05(b) of this Agreement; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions shall have been duly completed and satisfactory in substance and form to each Investor, and each Investor shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request; (h) from the date hereof to such Closing, trading in the ADSs shall not have been suspended by the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened);Investors: (i) the sale Second Amended and issuance of Restated LP Agreement, duly executed by the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor General Partner and the Company are subjectLimited Partner; (jii) The Shared Services Agreement by and between the General Partner and MCRC, a copy of which is attached hereto as Exhibit C; (iii) The Credit Enhancement Agreement by and between the General Partner and MCRC or its Affiliates, a copy of which is attached hereto as Exhibit D; (iv) The Registration Rights Agreement, a copy of which is attached hereto as Exhibit F; (v) The Recourse Agreement, a copy of which is attached hereto as Exhibit G; (vi) The Shareholders Agreement, a copy of which is attached hereto as Exhibit H; (vii) The Bylaws of the General Partner, a copy of which is attached hereto as Exhibit L; (viii) an Indemnification Agreement between the General Partner and each Investor shall have received a certificate signed of the trustees elected as of the date hereof by the Investors pursuant to the terms of the Preferred Units, in substantially the form attached hereto as 0 (the “Indemnification Agreement”) and duly executed by an executive authorized officer of the Company confirming General Partner and written evidence of an effective directors and officers’ liability insurance policy meeting the satisfaction requirements of items Section 5.03; (aix) through a certificate, dated as of the Closing Date, duly executed by the Secretary of MCRC and by the General Partner certifying that: (i) aboveattached thereto are true and complete copies of all resolutions adopted by the respective Boards of Directors of MCRC Parties and the Partnership Parties authorizing the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby; (ii) attached thereto are true and complete copies of all Organizational Documents of the MCRC Parties and the Partnership Parties, together with any and all amendments thereto; (x) a certificate, dated as of the Closing Date, duly executed by the Secretary (or equivalent officer) of MCRC and by the General Partner certifying the names and signatures of the officers of MCRC Parties and the Partnership Parties authorized to sign this Agreement, the Second Amended and Restated LP Agreement and each Ancillary Agreement; (xi) evidence of receipt of all necessary consents, approvals or waivers with respect to any Person (including any consent, approval or waiver in respect of any contract, license or permit) as required to be obtained by the MCRC Parties or Partnership Parties or any of their Subsidiaries or Related Parties in connection with the execution and delivery of this Agreement or any other Ancillary Agreement, the performance by the MCRC Parties or Partnership Parties or any of their Subsidiaries or Related Parties of their respective obligations hereunder and thereunder or the consummation of the transactions contemplated hereby or thereby; (xii) An opinion of Seyfarth Xxxx LLP, counsel to the MCRC Parties and the Partnership Parties, dated the Closing Date, in substantially the form attached hereto as Exhibit I, an opinion of Seyfarth Xxxx LLP, tax counsel to the MCRC Parties and the Partnership Parties, regarding REIT matters, dated the Closing Date, in substantially the form attached hereto as Exhibit J, an opinion of Seyfarth Xxxx LLP, Delaware counsel to the MCRLP and Partnership in substantially the form attached hereto as Exhibit I, and an opinion of Xxxxxxx Xxxxx LLP, Maryland counsel to MCRC, MCPT and RRT, dated the Closing Date, in substantially the form attached hereto as Exhibit K; (xiii) a properly completed Internal Revenue Service Form 8875 with respect to any Subsidiary that is (or is treated as) a corporation for federal income tax purposes, with Rockpoint Class A Preferred Holder (and any other REIT designated by the Investors) as the REIT (or REITs) named therein and having an effective date as of each Closing Date, duly executed by such Subsidiary, together with evidence reasonably satisfactory to the Investors of Investors’ authority to file such form with the Internal Revenue Service; (xiv) Schedule 1 attached to the Second Amended and Restated LP Agreement, which shall reflect the Investors as the holder of the Initial Purchased Units; (xv) Such other documents relating to the transactions contemplated hereby as the Investors or its counsel may reasonably request; and (kxvi) The amount to be reimbursed to the Designated Bank Account shall have been established Investors by the MCRC Parties pursuant to Section 9.01; (xvii) A certificate duly executed by the Chief Executive Officer and the signatories Chief Financial Officer of MCRC and by the General Partner certifying that, as of the Closing Date, each of the conditions set forth in Sections 6.01(a), Section 6.01(b) and Section 6.02 (solely with respect to the Designated Bank Account shall have MCRC Parties’ and Partnership Parties’ obligations thereunder) has been changed satisfied (except to the extent waived in accordance with Section 6.07(bwriting by the Investors).

Conditions to Obligations of the Investors. The obligation of each Investor to consummate Investors' obligations at the First Closing (or the Second Closing) is are subject to the satisfaction fulfillment, on or waiver by such Investorprior to the Closing Date, of all of the following conditions, any of which may be waived in whole or in part by the Investors: (a) the The representations and warranties of made by the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect shall be true and correct in all respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect Section 2 shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date)Closing; (cb) the Fundamental Company Representations shall be true and correct in all respects on and as of the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (d) the The Company shall have performed or and complied in all material respects with all obligations, covenants, agreements and conditions contained in this Agreement required to be performed or complied with by the Company on or prior to or at the such Closing; (c) Except for the notices required or permitted to be filed with certain federal and state securities commissions after Closing, the Company shall have obtained all U.S. governmental approvals required in connection with the sale and issuance of the Securities; (d) The Company and the holders of a majority of Registrable Securities (as defined in the Stockholders' Rights Agreement (as defined below)) shall have executed the Amended and Restated Stockholders' Rights Agreement in substantially the form attached hereto as Exhibit H (the "STOCKHOLDERS' RIGHTS AGREEMENT") dated as of the date hereof to, among other things, include the Warrant Stock as Registrable Securities under that agreement; (e) there The Company, Reed Hastings and Marc Randolph shall have been no event, occurrence, development or state executed the Voting Agreement xxxxxxxx xxxeto ax Xxxxxxx X (the "VOTING AGREEMENT") dated as of circumstances or facts that constitutes a Material Adverse Effectthe date hereof; (f) the Company Each Investor shall have duly executed and delivered to each Investor each of received from Wilson Sonsini Goodrich & Rosati, counsel for the items set forth Company, an opinion, dxxxx xx xx xxx Xxxxxxx, in Section 2.05(b) of this Agreementxxx xorm attached hereto as Exhibit J; (g) The Company shall have delivered to the Investors: (1) A copy of the Amended and Restated Certificate of Incorporation, Bylaws and resolutions of the Board of Directors and the stockholders of the Company authorizing and approving all matters in connection with the Agreements and the transactions contemplated hereby and thereby, certified by the Secretary of the Company as of the Closing Date. (2) A certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Closing Date, certifying to the fulfillment of the conditions specified in Sections 4.1(a) and (b) of this Agreement and that the "Right to Maintain" (as defined in Section 17 of the Stockholders' Rights Agreement) of all parties to the Stockholders' Rights Agreement having such Right to Maintain been waived or satisfied prior to the Closing Date; and (h) All corporate and other proceedings required for in connection with the transactions contemplated hereby on such Closing by the Agreements and all documents and instruments incidental incident to such transactions required to be delivered at or prior to the Closing shall have been duly completed and be reasonably satisfactory in substance and form to each Investorthe Investors and their special counsel, and each Investor the Investors and their special counsel shall have received all such counterpart originals or certified or other copies of such documents as it they may reasonably request; (h) from the date hereof to such Closing, trading in the ADSs shall not have been suspended by the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened); (i) the sale and issuance of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor and the Company are subject; (j) each Investor shall have received a certificate signed by an executive officer of the Company confirming the satisfaction of items (a) through (i) above; and (k) the Designated Bank Account shall have been established and the signatories to the Designated Bank Account shall have been changed in accordance with Section 6.07(b).

Conditions to Obligations of the Investors. The obligation of each Investor the Investors to consummate the First Closing (or the Second Closing) is subject to the satisfaction fulfillment (or waiver by such Investor, the Investors) at the Closing of each of the following conditions: (ai) (A) the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect shall be true and correct set forth in all respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect Section 3.1 shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those for any representations and warranties that address matters only as are qualified by materiality, all of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations which shall be true and correct in all respects respects) as though made on and as of the date hereof and such Closing except for de minimis inaccuracies Date (except that those other than representations and warranties that address matters only by their terms speak as of a particular date another date, which representations and warranties shall have been be so true and correct only on as of such date); , and (dB) the Company shall have performed or complied in all material respects with all obligations, covenants, agreements and conditions in this Agreement obligations required to be performed or complied with by the Company on it under this Agreement at or prior to the such Closing; (e) there shall have been no event, occurrence, development or state of circumstances or facts that constitutes a Material Adverse Effect; (fii) the Company shall have duly executed and delivered to each Investor the Investors, and each of the items set forth in Section 2.05(b) of this Agreement; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions Investors shall have been duly completed executed and satisfactory in substance and form delivered to each Investorthe Company, and each Investor shall have received all such counterpart originals or certified or other copies Amendment No. 2, dated as of such documents as it may reasonably request; (h) from the date hereof to such ClosingClosing Date, trading in the ADSs shall not have been suspended form of Annex A hereto, to that certain Registration Rights Agreement, dated February 19, 2013, as amended, by and among the SEC or parties hereto (such Registration Rights Agreements, as amended, the Company’s principal Trading Market (nor shall such suspension have been threatened“Registration Rights Amendment”); (iiii) no stop order or suspension of trading shall have been imposed by NYSE MKT, the Securities and Exchange Commission (the “SEC”) or any other Governmental Entity with respect to public trading of the Common Stock and the Company shall not have received any notice indicating that the Common Stock will be suspended, limited or delisted; (iv) neither the Company nor any of its Subsidiaries shall be a debtor in a bankruptcy case or have filed for bankruptcy (under title 11 of the United States Code or any other bankruptcy, receivership, or any other insolvency proceeding in any jurisdiction); (v) since the date hereof, there shall not have occurred a Material Adverse Change; (vi) the sale Company shall have delivered to the Investors a good standing certificate with respect to the Company and each of its Subsidiaries issued by the Montana Secretary of State and the Colorado Secretary of State or, with respect to any such Subsidiary not incorporated or otherwise organized under the laws of the State of Montana or the State of Colorado, the applicable Governmental Entity of the jurisdiction in which such Subsidiary is organized, each dated as of a recent date; (vii) the Company shall have delivered to the Investors a certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying (e) the resolutions adopted by the Company’s board approving the Transaction Documents, the Transactions and the issuance of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor Purchased Securities, (f) the current versions of the Articles of Incorporation and the Bylaws, (g) the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company are subjectand (h) the fulfillment of the conditions specified in this Section 1.3(c); (jviii) each Investor the Company shall have received a certificate signed delivered all other documents, certificates, instruments and writings reasonably requested by an executive officer any of the Company confirming Investors or their counsel prior to the satisfaction Closing as may be necessary or advisable in connection with the consummation of items (a) through (i) aboveany of the Transactions; and (kix) the Designated Bank Account Offering shall have been established and consummated on or before the signatories to the Designated Bank Account shall have been changed in accordance with Section 6.07(b)Closing Date.

Conditions to Obligations of the Investors. The obligation of each Investor the Investors to consummate the First Closing (or the Second Closing) is subject to the satisfaction fulfillment (or waiver by such Investor, the Investors) at the Closing of each of the following conditions: (ai) (A) the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect shall be true and correct set forth in all respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect Section 3.1 shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those for any representations and warranties that address matters only as are qualified by materiality, all of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations which shall be true and correct in all respects respects) as though made on and as of the date hereof and such Closing except for de minimis inaccuracies Date (except that those other than representations and warranties that address matters only by their terms speak as of a particular date another date, which representations and warranties shall have been be so true and correct only on as of such date); , and (dB) the Company shall have performed or complied in all material respects with all obligations, covenants, agreements and conditions in this Agreement obligations required to be performed or complied with by the Company on it under this Agreement at or prior to the such Closing; (e) there shall have been no event, occurrence, development or state of circumstances or facts that constitutes a Material Adverse Effect; (fii) the Company shall have duly executed and delivered to each Investor the Investors, and each of the items set forth in Section 2.05(b) of this Agreement; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions Investors shall have been duly completed executed and satisfactory in substance and form delivered to each Investorthe Company, and each Investor shall have received all such counterpart originals or certified or other copies Amendment No. 1, dated as of such documents as it may reasonably request; (h) from the date hereof to such ClosingClosing Date, trading in the ADSs shall not have been suspended form of Annex A hereto, to that certain Registration Rights Agreement, dated February 19, 2013, by and among the SEC or parties hereto (such Registration Rights Agreements, as amended, the Company’s principal Trading Market (nor shall such suspension have been threatened“Registration Rights Amendment”); (iiii) no stop order or suspension of trading shall have been imposed by NYSE MKT, the Securities and Exchange Commission (the “SEC”) or any other Governmental Entity with respect to public trading of the Common Stock and the Company shall not have received any notice indicating that the Common Stock will be suspended, limited or delisted; (iv) neither the Company nor any of its Subsidiaries shall be a debtor in a bankruptcy case or have filed for bankruptcy (under title 11 of the United States Code or any other bankruptcy, receivership, or any other insolvency proceeding in any jurisdiction); (v) since the date hereof, there shall not have occurred a Material Adverse Change; (vi) the sale Company shall have delivered to the Investors a good standing certificate with respect to the Company and each of its Subsidiaries issued by the Montana Secretary of State and the Colorado Secretary of State or, with respect to any such Subsidiary not incorporated or otherwise organized under the laws of the State of Montana or the State of Colorado, the applicable Governmental Entity of the jurisdiction in which such Subsidiary is organized, each dated as of a recent date; (vii) the Company shall have delivered to the Investors a certificate, executed on behalf of the Company by its Secretary, dated as of the Closing Date, certifying (A) the resolutions adopted by the Company’s board approving the Transaction Documents, the Transactions and the issuance of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor Purchased Securities, (B) the current versions of the Articles of Incorporation and the Bylaws, (C) the signatures and authority of persons signing the Transaction Documents and related documents on behalf of the Company are subjectand (D) the fulfillment of the conditions specified in this Section 1.3(b); (jviii) each Investor the Company shall have received a certificate signed delivered all other documents, certificates, instruments and writings reasonably requested by an executive officer any of the Company confirming Investors or their counsel prior to the satisfaction Closing as may be necessary or advisable in connection with the consummation of items (a) through (i) aboveany of the Transactions; and (kix) the Designated Bank Account Offering shall have been established and consummated on or before the signatories to the Designated Bank Account shall have been changed in accordance with Section 6.07(b)Closing Date.

Conditions to Obligations of the Investors. The obligation obligations of each Investor the Investors to consummate the First Closing (or the Second Closing) is transactions contemplated hereby shall be subject to the satisfaction or waiver by such Investor, at or prior to the Closing of each of the following conditions: (a) Each of the representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect contained in this Agreement shall be true and correct in all respects on when made and as of the date hereof and such Closing (except that those to the extent such representations and warranties that address matters only are made as of a particular date date, in which case such representations and warranties shall have been true and correct only on as of such date), except for failures to be true and correct which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect; (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on and as of the date hereof and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (c) the Fundamental Company Representations shall be true and correct in all respects on and as of the date hereof and such Closing except for de minimis inaccuracies (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (d) the The Company shall have performed or performed, satisfied and complied in all material respects with all obligations, covenants, of its covenants and agreements and conditions set forth in this Agreement required to be performed or performed, satisfied and complied with by the Company on or prior to or at the such Closing; (c) The Company shall have delivered to the Investors an officer’s certificate certifying as to the Company’s compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered the Second Amended and Restated Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the “Registration Rights Agreement”), and the Registration Rights Agreement shall be in full force and effect; (e) there The Amended Certificates of Designation shall have been no event, occurrence, development or state duly approved and adopted by the common stockholders of circumstances or facts that constitutes a Material Adverse Effectthe Company pursuant to Section 228 of the DGCL and the Amended Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Amended Certificates of Designation shall be in full force and effect; (f) All Conversion Shares and the Company New Common Shares shall have been duly executed authorized and delivered reserved for issuance and such Conversion Shares and the New Common Shares shall have been approved for listing on the NMS, subject to each Investor each official notice of the items set forth in Section 2.05(b) of this Agreementissuance; (g) all corporate and other proceedings required for transactions contemplated hereby on such Closing and all documents and instruments incidental to such transactions shall have been duly completed and satisfactory in substance and form to each Investor, and each Investor The Investors shall have received all such counterpart originals or certified or other copies an opinion of such documents as it may reasonably request;Xxxxxxx Xxxx & Xxxxxxxxx, outside counsel to the Company, with respect to the due incorporation, due authorization, validity of the New Common Shares, the valid and binding nature of this Agreement and the Securities Act exemption of the transactions contemplated hereby, the Registration Rights Agreement and the Amended Certificates of Designation; and (h) from Since the date hereof to such Closinghereof, trading in the ADSs there shall not have been suspended by the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened); occurred (i) any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the sale and issuance business, assets, financial condition, prospects, or results of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor and the Company are subject; (j) each Investor shall have received a certificate signed by an executive officer operations of the Company confirming and its Subsidiaries taken as a whole or (y) on the satisfaction ability of items the Company and such Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the transactions contemplated hereby; or (aii) through (i) above; and (k) the Designated Bank Account shall have been established and the signatories to the Designated Bank Account shall have been changed any material disruption of or material adverse change in accordance with Section 6.07(b)financial, banking or capital market conditions.

Conditions to Obligations of the Investors. The obligation of each Investor to consummate the First Closing (or the Second Closing) is also subject to the satisfaction fulfillment or written waiver by such Investor, on or prior to the Closing of each of the following conditions: (a) the The representations and warranties of the Company (other than the Fundamental Company Representations) that are qualified by materiality or Material Adverse Effect set forth in Section 3.2 of this Agreement shall be true and correct in all respects on and as of the date hereof of this Agreement and such Closing (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on such date); (b) the representations and warranties of the Company (other than the Fundamental Company Representations) that are not qualified by materiality or Material Adverse Effect shall be true and correct in all material respects on and as of the date hereof and such Closing Date (except that those representations and warranties that address matters only as of a particular date shall have been true and correct only on where any representation or warranty is expressly qualified by materiality, Material Adverse Effect or other materiality qualifier, such date); (c) the Fundamental Company Representations representation or warranty shall be true and correct in all respects respects) as though made on and as of the date hereof and such Closing except for de minimis inaccuracies Date (except that those to the extent such representations and warranties that address matters only are made as of a particular date specified date, in which case such representations and warranties shall have been be true and correct only on in such respect set forth above as of such date); (db) the The Company shall have performed or complied in all material respects with all obligations, covenants, agreements and conditions in this Agreement obligations required to be performed or complied with by the Company on it at or prior to the such ClosingClosing under this Agreement; (c) The Investors shall have received a certificate, dated the Closing Date, signed on behalf of the Company by a senior executive officer certifying to the effect that the conditions set forth in Sections 5.2(a) and Section 5.2(b) have been satisfied; (d) The Investors shall have received from outside counsel to the Company, a written opinion dated the Closing Date in the form attached hereto as Exhibit A; (e) there The Investors shall have been no eventreceived a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Company certifying that attached thereto are true and complete copies of all resolutions adopted by the Board authorizing the execution, occurrencedelivery and performance of this Agreement and the consummation of the transactions contemplated hereby, development or state of circumstances or facts and that constitutes a Material Adverse Effectall such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby; (f) the The Company shall have duly executed and delivered to each Investor each of the items set forth in Section 2.05(b) of this AgreementInvestors such other documents or instruments as the Investors reasonably request and are reasonably necessary to consummate the Closing; (g) all corporate The Bank and other proceedings required for VFC Partners 4 LLC shall have closed the transactions contemplated hereby on such Closing by that certain Asset Purchase Agreement by and all documents between the Bank and instruments incidental to such transactions shall have been duly completed and satisfactory in substance and form to each InvestorVFC Partners 4 LLC dated as of May , and each Investor shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request;2010; and (h) from the date hereof to such Closing, trading in the ADSs shall not have been suspended by the SEC or the Company’s principal Trading Market (nor shall such suspension have been threatened); (i) the sale and issuance of the Subscription Securities shall be legally permitted by all laws and regulations to which each Investor The Investors and the Company are subject; (j) each Investor shall have received a certificate signed by an executive officer of entered into the Company confirming Registration Rights Agreement in the satisfaction of items (a) through (i) above; and (k) the Designated Bank Account shall have been established and the signatories to the Designated Bank Account shall have been changed in accordance with Section 6.07(b).form attached hereto as Exhibit B.