Common use of Initial Closing Clause in Contracts

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Initial Closing. In consideration The obligation of each Buyer hereunder to purchase the Initial Notes and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each applicable Lender’s payment Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company and each of its pro rata share Subsidiaries shall have duly executed and delivered to such Buyer each of the aggregate purchase price following documents to which it is a party: (A) each of the “Transaction Documents, (B) the Initial Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Initial Closing Note Purchase Price”pursuant to this Agreement and (C) the related Initial Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to this Agreement. (ii) The Company shall have delivered to such Buyer the Voting Agreement duly executed and delivered by the Principal Stockholders. (iii) Such Buyer shall have received the opinion of Sxxxx & Wxxxxx L.L.P., the Company's outside counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit G attached hereto. (iv) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit F attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (v) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its U.S. Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction or a bring down of such good standing from Incorporating Services, Ltd., as of a date within ten (10) days of the Initial Closing Date. (vi) The Company shall have delivered to such Buyer a certificate evidencing the Company's and each of its U.S. Subsidiaries' qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and its U.S. Subsidiaries conduct business or a bring down of such good standing from Incorporating Services, Ltd., as of a date within ten (10) days of the Initial Closing Date. (vii) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of its U.S. Subsidiaries (other than the Subsidiaries formed in the State of Florida) as certified by the Secretary of State (or comparable office) of the Notes jurisdiction of formation of the Company and each of its Subsidiaries within ten (10) Business Days of the Initial Closing Date. (viii) The Company shall have delivered to be purchased such Buyer a certificate, executed by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) Secretary of the Schedule Company and dated as of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's and each of its Subsidiaries' Board of Directors in a Noteform reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and each of its Subsidiaries and (iii) the Bylaws of the Company and each of its Subsidiaries, each as in effect at the Initial Closing, in substantially the form attached hereto as Exhibit AH. (ix) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which are accurate in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which are accurate in all respects) as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the aggregate principal amount form attached hereto as is set forth opposite Exhibit I. (x) The Company shall have delivered to such Lender’s name in column four Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock issued and outstanding as of a date within five (45) days of the Initial Closing Date. (xi) The Company shall have delivered to each Buyer a lock-up agreement in the form attached hereto as Exhibit J executed and delivered by each of the Persons listed on Schedule 7(a)(xi) (collectively, the "Lock-Up Agreements"). (xii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of Lenders attached hereto. the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xiii) The closing Company shall have obtained all governmental, regulatory, corporate or third party consents and approvals, if any, necessary for the sale of the Securities. (xiv) The Company shall have submitted to the “Closing”) Principal Market a Listing of Additional Shares notification in connection with the transactions contemplated hereby and the Principal Market shall have approved, orally or in writing, the transactions contemplated by this Agreement and the other Transaction Documents and the issuance of the Notes Securities. (xv) The Company shall have delivered to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions such Buyer such other documents relating to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to transactions contemplated by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations this Agreement as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender Buyer or its designeecounsel may reasonably request.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (a) The initial closing of the aggregate purchase price and sale of the Securities (the “Closing Note Purchase PriceInitial Closing”) will take place on the date hereof (the “Initial Closing Date”) at the offices of Xxxxx Xxxxxx Xxxxxx, LLP, legal counsel to the Notes Company (“Company Counsel”), at Xxx Xxxxx Xxxxxx, Xxxxxxxxx Xxx Xxxx 00000, or remotely by exchange of electronic copies as the Company and the Initial Purchasers shall mutually agree. (b) At the Initial Closing, the Company shall deliver to be purchased each Initial Purchaser (against such Initial Purchaser’s deliveries set forth in Section 2.2(c)): (i) a Note, duly executed by the Lenders at Company, payable to such Initial Purchaser in the Closing (as defined below), which is principal amount set forth opposite such LenderInitial Purchaser’s name on Schedule A; and (ii) a Warrant, duly executed by the Company, issued in column four (4) the name of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees Initial Purchaser to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is number of Warrant Shares set forth opposite such LenderInitial Purchaser’s name in column four on Schedule A. (4c) of At the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders , each Initial Purchaser shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions deliver to the Closing Company (against the Company’s deliveries set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent2.2(b). On the Closing Date, ): (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to set forth opposite such Lender at the Closing, Initial Purchaser’s name on Schedule A by wire transfer of immediately available funds, as more fully set forth on funds to the Schedule of Lenders and account designated by the Company in writing for such purpose; and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingan Accredited Investor Questionnaire, completed and duly executed on behalf of by the Borrower and registered Initial Purchaser, together with the information specified therein necessary for the Company to verify that the Initial Purchaser is an “accredited investor” as defined in the name of such Lender or its designee.Regulation D.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The obligation of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes Company hereunder to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell the Initial Notes and the related Initial Warrants to such Lender on each Buyer at the Initial Closing Date (as defined below)is subject to the satisfaction, and each applicable Lender severally, but not jointly, agrees to purchase from at or before the Borrower on the Initial Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of each of the Schedule of Lenders attached hereto. The closing (following conditions, provided that these conditions are for the “Closing”) of the transactions contemplated by this Agreement Company's sole benefit and the issuance of the Notes to may be issued on the Closing Date waived by the Borrower and the purchase thereof Company at any time in its sole discretion by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, providing each Buyer with prior written notice thereof: (i) Such Buyer shall have executed each Lender shall pay its pro rata share of the Closing Note Transaction Documents to which it is a party and delivered the same to the Company. (ii) Such Buyer shall have delivered or reserved for payment and agree to, promptly upon the opening of such Buyer's or Buyer Group's Deposit Account, deposit of the Initial Purchase Price (less any amounts withheld pursuant to the Borrower Section 4(g)) to such Deposit Account for the Initial Notes to be issued and sold to the related Initial Warrants being purchased by such Lender Buyer at the Closing, Initial Closing by wire transfer of immediately available funds, as more fully funds pursuant to the wire instructions set forth on in such Buyer's or Buyer Group's Deposit Agreement, such Initial Purchase Price to be held and released by such Depositary in accordance with and pursuant to the Schedule terms and conditions of Lenders such Deposit Agreement. (iii) The representations and warranties of such Buyer shall be true and correct in all material respects (iiexcept for those representations and warranties that are qualified by materiality, which are accurate in all respects) as of the Borrower date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall deliver to each Lender the Notes be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which are accurate in the denominations all respects) as of such Lender specified date), and such Buyer shall have requested performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeInitial Closing Date.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (a) Subject to the satisfaction or, if permissible, waiver of the aggregate purchase price conditions set forth in Article V hereof, the Initial Closing shall take place at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m., New York City time, on the third Business Day following the satisfaction of the closing conditions set forth in Article V hereof, or at such other time and place as the parties may agree (the “date on which the Initial Closing Note Purchase Price”occurs, the "Initial Closing Date"). (b) of At the Notes Initial Closing, (i) the Company will deliver to the Purchaser certificates representing the Senior Preferred Stock to be purchased by, and sold to, the Purchaser pursuant to Section 2.2 hereof (registered in the name or names and in the denominations designated by Capital Z at least two Business Days prior to the Initial Closing Date), together with the other documents, certificates and opinions to be delivered pursuant to Section 5.1 hereof, (ii) the Purchaser, in full payment for the Senior Preferred Stock to be purchased by, and sold to, the Purchaser pursuant to Section 2.2 hereof, will deliver to the Company an amount per share equal to the Purchase Price, in immediately available funds by wire transfer to the account specified by the Lenders Company to Capital Z at least two Business Days prior to the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a Noteor by such other means as may be agreed upon by the parties hereto, together with the other documents, certificates and opinions to be delivered pursuant to Section 5.2 hereof, (iii) the Company will pay to Capital Z (or its designee) the Transaction Fee, in substantially immediately available funds by wire transfer to the account designated by Capital Z at least two Business Days prior to the Initial Closing Date, (iv) the Company will issue to Capital Z (or its designees) a warrant (the "Contingent Warrant") in the form attached hereto as Exhibit AE, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (iiv) the Borrower Company shall execute and deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeManagement Services Agreement.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (a) Upon the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a NoteOperator will have all the rights granted herein with respect to Spectrum and Sprint Transmission Equipment in each Market that is the subject of such Closing. (b) Following the date on which Sprint and Operator have obtained Tower Lease Consents to enter into Tower Subleases or have procured Substitute Tower Leases, in substantially the form attached hereto as Exhibit Aor combination thereof, and for at least five Markets, which Markets, along with those Markets identified in the aggregate principal amount as is set forth opposite such Lender’s name in column last two sentences of this Section 3.2(b), will include without limitation at least four (4) of the Schedule top ten Markets as determined by the number of Lenders attached heretohouseholds in each Market ("Minimum Number of Markets"), Sprint will proceed with the initial Closing by providing Operator with notice of Sprint's selection of a date which is no sooner than 10 days following such notice and no later than 180 days following the Effective Date and such date will be the Initial Closing Date. If Sprint and Operator have obtained Tower Lease Consents to enter into Tower Subleases or SPRINT PROPRIETARY INFORMATION EXECUTION VERSION have procured Substitute Tower Leases for the Minimum Number of Markets and Sprint fails to provide such notice, then the Initial Closing Date will occur on the earlier of the 30th day following the date that Sprint and Operator have obtained the Tower Sublease Consents or Substitute Tower Leases for the Minimum Number of Markets or the 180th day following the Effective Date. The closing Parties acknowledge that Sprint does not have any tower facilities in the following Markets and that such Markets will become Closed Markets on the Initial Closing Date without any condition of a Tower Sublease Consent or Substitute Tower Lease: [***] The Parties acknowledge that a Sprint Subsidiary owns the tower facilities in the [***] Market and that such Market will become a Closed Market on the Initial Closing Date, subject to such Sprint Subsidiary and Operator entering into a lease agreement as mutually agreed upon for such tower facilities. (c) Following the “Closing”selection or determination of the Initial Closing Date, the Parties will proceed with Closing with respect to all applicable Markets, provided that: (i) The following conditions to Operator's obligation to proceed with Initial Closing Date are satisfied or waived by Operator: (A) Sprint will have delivered to Operator Tower Subleases (with any required Tower Sublease Consents) and Substitute Tower Leases for at least the Minimum Number of Markets. (B) Sprint will have delivered to Operator all documents referenced in Section 2.4(a) hereof. (C) As of the Initial Closing Date there will exist no valid order, statute, rule, regulation, executive order, stay, decree, judgment or injunction which prohibits or prevents the consummation of the transactions contemplated by this Agreement. (D) All representations and warranties made by Sprint in or pursuant to this Agreement will be true and the issuance correct in all material respects, except for those representations and warranties that are qualified as to materiality which will be true and correct in all respects, on and as of the Notes to be issued on the Initial Closing Date by with the Borrower same effect as if such representations and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date warranties had been made on and time as of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Initial Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price except to the Borrower for extent that any such representation or warranty by its terms relates to an earlier date, and except to the Notes extent that any change is expressly permitted by the terms of this Agreement or expressly consented to in writing by Operator. (E) Sprint will have performed or complied in all material respects with all covenants, agreements and conditions contained in this SPRINT PROPRIETARY INFORMATION EXECUTION VERSION Agreement required to be issued and sold performed or complied with at or prior to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and Initial Closing Date. (ii) The following conditions to Sprint's obligation to proceed with Initial Closing Date are satisfied or waived by Sprint: (A) Operator will have delivered to Sprint all items referenced in Section 2.4(b) hereof. (B) As of the Borrower shall deliver Initial Closing Date there will exist no valid order, statute, rule, regulation, executive order, stay, decree, judgment or injunction which prohibits or prevents the consummation of the transactions contemplated by this Agreement. (C) All representations and warranties made by Operator in or pursuant to each Lender this Agreement will be true and correct in all material respects, except for those representations and warranties that are qualified as to materiality which will be true and correct in all respects, on and as of the Notes Initial Closing Date with the same effect as if such representations and warranties had been made on and as of the Initial Closing Date, except to the extent that any such representation or warranty by its terms relates to an earlier date, and except to the extent that any change that is expressly permitted by the terms of this Agreement or expressly consented to in writing by Operator. (D) Operator will have performed or complied in the denominations as such Lender shall have requested all material respects with all covenants, agreements and conditions contained in this Agreement required to be performed or complied with at or prior to the ClosingInitial Closing Date. (E) which such Lender is then purchasing, duly executed Operator will have paid Sprint all Market Closing Payments for each Market Closing on behalf of the Borrower and registered in the name of such Lender or its designeeInitial Closing Date.

Initial Closing. In consideration Subject to the terms and conditions hereof, immediately following the date on which the applicable conditions set forth in Sections 7.1, 7.3 and 7.4 shall have been satisfied or duly waived, Buyer will purchase and acquire (and the Advancing Party shall advance sufficient funds for each such purchase) from the Company, and the Company will sell, convey, assign, transfer and deliver to Buyer, the Initial Number of Shares of Company Common Stock, and Buyer will pay to the Company the Purchase Price for such shares of Company Common Stock (the "Initial Closing"); provided, however, that if the applicable Lender’s payment of conditions set forth in Sections 7.1, 7.3 and 7.4 shall have been duly satisfied or waived prior to July 31, 1997, Buyer shall have the option, at its pro rata share sole discretion, to consummate the Initial Closing by purchasing (i) 1,064,286 of the aggregate purchase price (the “Closing Note Purchase Price”) Initial Number of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, Shares on the date hereof, subject to notification of satisfaction (such conditions are satisfied or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders waived and (ii) 856,726 of the Borrower Initial Number of Shares on a date to be determined at Buyer's election but which date shall deliver be prior to August 1, 1997 (unless expressly provided for herein, each Lender such date on which shares are purchased pursuant to clauses (i) and (ii) of this proviso shall be separately considered an Initial Closing for purposes of this Agreement)." 3. The last sentence of Section 3.19 of the Notes (Agreement is hereby replaced in its entirety as follows: "The record date for such vote will be established on or after the denominations latest date that shares are purchased at the Initial Closing." 4. The first sentence of Section 3.23 of the Agreement is hereby replaced in its entirety as such Lender shall have requested follows: "If Buyer obtains knowledge prior to the Closing) first date on which such Lender is then purchasing, duly executed on behalf shares are purchased at the Initial Closing that any of representations or warranties of the Borrower Company set forth in this Article 3 are untrue in any respect and registered Buyer nevertheless elects to acquire Company Common Stock at the Initial Closing, then such breach shall be deemed to have been waived by the Buyer and the Company shall have no liability to Buyer in respect thereof." 5. The last sentence of Section 5.4(c) of the name Agreement is hereby replaced in its entirety as follows: "This provision shall not survive the first date on which shares are purchased at the Initial Closing." 6. Section 5.10(ii)(y) of such Lender or the Agreement is hereby replaced in its designee.entirety as follows:

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The obligation of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes Company hereunder to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell the Initial Notes to such Lender on each Buyer at the Initial Closing Date (as defined below)is subject to the satisfaction, and each applicable Lender severally, but not jointly, agrees to purchase from at or before the Borrower on the Initial Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of each of the Schedule of Lenders attached hereto. The closing (following conditions, provided that these conditions are for the “Closing”) of the transactions contemplated by this Agreement Company’s sole benefit and the issuance of the Notes to may be issued on the Closing Date waived by the Borrower and the purchase thereof Company at any time in its sole discretion by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, providing each Buyer with prior written notice thereof: (i) Such Buyer shall have executed each Lender shall pay its pro rata share of the Closing Note Transaction Documents to which it is a party and delivered the same to the Company. (ii) Such Buyer shall have delivered (A) the Initial Cash Purchase Price contemplated by Section 1(c) hereof (less, in the case of Starboard Value and Opportunity Master Fund Ltd., any amounts withheld pursuant to the Borrower Section 4(g)) for the Initial Notes to be issued and sold to being purchased by such Lender Buyer at the Closing, Initial Closing pursuant to Section 1(d) hereof by wire transfer of immediately available funds, as more fully set forth on funds pursuant to the Schedule of Lenders wire instructions provided by the Company; and (iiB) the Borrower number of whole shares of Common Stock representing the Initial Share Purchase Price as contemplated by Section 1(c) and Section 1(d) hereof. (iii) The representations and warranties of such Buyer shall deliver be true and correct in all material respects (except for those representations and warranties that are qualified by materiality, which shall be true and correct in all respects subject to each Lender such qualification) as of the Notes date when made and as of the Initial Closing Date as though made at that time (in the denominations except for representations and warranties that speak as of a specific date which shall be true and correct as of such Lender specified date), and such Buyer shall have requested performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeInitial Closing Date.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of At the aggregate purchase price Initial Closing, the Buyer shall deliver to the Sellers: (i) an amount in cash (the “Initial Closing Note Cash Payment”) equal to (A) the Initial Closing Purchase Price”, minus (B) the amount of the Notes to be purchased by Estimated Initial Closing Net Working Capital Deficit, if any, plus (C) the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) amount of the Schedule of Lenders attached heretoEstimated Initial Closing Net Working Capital Surplus, if any, minus (D) the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing Estimated Initial Closing Other Third-Party Brand Deficit, if any, plus (E) the “Closing”) amount of the transactions contemplated by this Agreement and Estimated Initial Closing Other Third-Party Brand Surplus, if any, minus (F) the issuance amount of the Notes to be issued on Estimated Initial Closing DP Deficit, if any, plus (G) the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time amount of the Estimated Initial Closing DP Surplus, if any, minus (H) the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) amount of the conditions to Estimated Initial Closing Residual Transferred Assets Deficit, if any, plus (I) the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share amount of the Estimated Initial Closing Note Purchase Price to Residual Transferred Assets Surplus, if any, minus (J) the Borrower for amount of the Notes to be issued Estimated Initial Closing Other Assets and sold to such Lender at Liabilities Deficit, if any, plus (K) the Closingamount of the Estimated Initial Closing Other Assets and Liabilities Surplus, if any, minus (L) the Estimated Initial Closing Retained Assets Amount, plus (M) the Estimated Initial Closing Retained Liabilities Amount, by wire transfer of in immediately available funds, to an account or accounts as more fully set forth on directed by the Schedule of Lenders and Sellers, provided that the Sellers will designate such account or accounts no later than three (3) Business Days prior to the anticipated Initial Closing Date; (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingInitial Closing Xxxx of Sale, Assignment and Assumption Agreement, duly executed on behalf by the Buyer; (iii) with respect to each Leased Real Property included within the Initial Closing Transferred Assets, an Assignment and Assumption of Lease, duly executed by the Borrower Buyer and, if necessary, the Buyer’s signature shall be witnessed and/or notarized; and (iv) the other documents and registered in the name of such Lender or its designeecertificates required to be delivered pursuant to Section 7.01(b).

Initial Closing. In consideration (a) The sale, contribution and transfer of the Initial Shares by the Initial Sellers to Purchaser (the "Initial Closing") shall simultaneously take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 00 xxx xx Xxxxxxxx Xxxxx-Xxxxxx, 00000 Xxxxx, Xxxxxx and at the offices of Lexence N.V., Xxxxx van Xxxxxxxxxxxx 0, 0000 XX Xxxxxxxxx, xxx Xxxxxxxxxxx at 10:00 a.m., as soon as all the conditions to close set forth in ARTICLE VII (other than those conditions with respect to actions the Parties shall take at the Initial Closing itself) have been satisfied and/or waived, unless another date or place is agreed to in writing by the Purchaser and the Sellers' Representatives. Subject to the provisions of ARTICLE VIII, failure to consummate the purchase and sale provided for in this Agreement on the date and time and at the place determined pursuant to this Section 2.1 will not result in the termination of this Agreement and will not relieve any Party of any of its obligations under this Agreement. (b) At the Initial Closing, the Sellers' Representatives shall deliver to Purchaser: (i) for each applicable Lender’s payment of its pro rata share Initial Seller, a transfer order (ordre de mouvement) for the transfer to Purchaser of the aggregate purchase price Initial Shares of such Initial Seller duly executed by such Initial Seller in favor of Purchaser; (ii) all statutory registers and other books and records of the “Company and EDS Corp. including but not limited to the Company's comptes d'actionnaires and registre des mouvements de titres, as well as the registre des procès-verbaux d'assemblèe and the registre des procès-verbaux de réunion du directoire et du conseil de surveillance; (iii) a certified copy of the notices of the Company and Company Subsidiaries duly and timely convening supervisory board and, to the extent possible, shareholder meetings on the Initial Closing Note Purchase Price”Date; the agenda of which shall be to appoint new members of the Company's management board and the supervisory board and new directors and officers in each of the Company Subsidiaries whose names shall have been previously communicated with reasonable prior notice to the Seller's Representatives by Purchaser; (iv) letters from the members of the management board (directoire) and the supervisory board (conseil de surveillance) of the Notes Company, other than Xxx. Xxxxxx, pursuant to be purchased by which they resign from the Lenders at management board and the Closing (as defined below)supervisory board, which is set forth opposite such Lender’s name in column four (4) respectively, of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender Company on the Initial Closing Date Date; (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase v) letters from the Borrower directors of the Company Subsidiaries pursuant to which they resign from their function as directors on the Closing Date; (vi) a copy of a confirmation letter from Sellers' Representative, sent by facsimile to the Notary, that (i) the Initial Shares of such Initial Seller have been transferred and (ii) a NoteDeed of Issuance and the Deed of Pledge may be executed; (vii) a power of attorney in favor of Purchaser from each of the Initial Sellers authorizing Purchaser to terminate the Former Shareholders Agreement and all ancillary agreements relating thereto as of the Subsequent Closing Date; (viii) a certified copy of the minutes of the management board of the Company, acknowledging the redemption of the Bonds, the payment of the subscription price due in respect of the redemption of the Bonds, the compilation of the capital increase and the issue of Ordinary Shares or Preferred Shares of the Company resulting from such exercises; (ix) the New Shareholders' Agreement from each of the Initial Sellers; (x) duly signed employment, consulting agreements of certain Sellers listed in Exhibit 2.1(b)(x) in a form to be agreed upon by the Purchaser and such Sellers; (xi) executed copies of (A) the deed of pledge of the Guarantors substantially in the form attached hereto as Exhibit A2.1(b)(xi) (the "Deed of Pledge"), and with respect to 461,504 Purchaser Shares (B) the debenture pledge agreement of the Guarantors substantially in the aggregate principal amount form attached as is set forth opposite such Lender’s name in column four Exhibit 2.1(b)(xii) (4the "Debenture Pledge Agreement"), with respect to 153,835 Convertible Subordinated Debentures and (C) a pledge agreement of the Schedule Mallets in a form to be agreed upon between the Purchaser and the Guarantors Representative, with respect to an aggregate of Lenders attached hereto. The closing 119,390 Convertible Subordinated Debentures and 358,168 Purchaser Shares (or 23,878 shares of Company Preferred Stock); (xii) [INTENTIONALLY OMITTED] (xiii) the “Closing”) debenture agreement of the transactions contemplated Initial Sellers substantially in the form attached as Exhibit 2.1(b)(xiii); and (xiv) all other previously undelivered documents required to be delivered by this Agreement and the issuance each of the Notes Sellers, to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur Purchaser at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions prior to the Closing in connection with the Transactions. (c) At the Initial Closing, Purchaser shall deliver to the Sellers' Representatives: (i) the Closing Amount due to the Initial Sellers; provided, that the amount of cash due to any Initial Seller in consideration of such Initial Seller's Sold Shares shall be paid to the such Initial Seller as provided in the instructions set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing DateSchedule; (ii) a copy of the confirmation letter of Purchaser, sent by facsimile to the Notary, that (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Initial Shares have been transferred and (ii) the Borrower shall deliver Deed of Issuance and the Deed of Pledge may be executed; (iii) the Liquidity Agreements for the Initial Sellers; (iv) such other documents as are required to each Lender be delivered by Purchaser to the Notes (in the denominations as such Lender shall have requested Initial Sellers at or prior to the ClosingInitial Closing under this Agreement; (v) duly signed employment, consulting or intellectual property agreements of certain Sellers listed in Exhibit 2.1(b)(x) in a form to be mutually agreed upon by the Purchaser and such Sellers; (vi) satisfactory evidence that the Contribution Amount has been issued; and (vii) a form of notice necessary for the Purchaser to exercise the drag-along rights under the Former Shareholders Agreement, which such Lender is then purchasing, duly executed on behalf of will be sent promptly after the Borrower and registered Initial Closing as provided in the name of such Lender or its designeeFormer Shareholders Agreement.

Initial Closing. In consideration for The obligation of each applicable Lender’s payment of its pro rata share of Buyer hereunder to purchase the aggregate purchase price (the “Closing Note Purchase Price”) of the Initial Notes to be purchased by the Lenders at the Initial Closing is subject to the satisfaction (as defined belowor waiver), which is set forth opposite such Lender’s name in column four (4) of at or before the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a Noteparty: (A) each of the Transaction Documents and (B) the Initial Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Initial Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Xxxxx Day, the Company’s outside counsel, dated as of the Initial Closing Date, in form and substance reasonably satisfactory to such Buyer. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Initial Closing, such certificate substantially in the form attached hereto as Exhibit AG. (vi) Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of the Company, dated as of the Initial Closing Date, to the effect that the representations and warranties of the Company shall be true and correct in the aggregate principal amount as is set forth opposite such Lender’s name all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in column four (4all respects) of the Schedule of Lenders attached hereto. The closing (the “Closing”) date when made and as of the transactions contemplated Initial Closing Date (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date) and as to such other matters as may be reasonably requested by this Agreement such Buyer substantially in the form attached hereto as Exhibit H. (vii) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) Business Days of the Initial Closing Date. (viii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (ix) The Collateral Agent shall have received the results of searches for any effective UCC financing statements, listing all effective financing statements which name as debtor the Company or any of the Guarantors and which are filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements, none of which, except for Permitted Liens or as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral, and the issuance results of the Notes searches for any tax lien and judgment lien filed against such person or its property, which results, except as otherwise agreed to be issued on the Closing Date in writing by the Borrower and the purchase thereof by the applicable Lenders Collateral Agent, shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. not show any such liens. (x) The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender Collateral Agent shall have requested prior to received the Closing) which such Lender is then purchasingSecurity Agreement, duly executed on behalf by the Company and each of the Borrower Guarantors, together with (A) the original stock certificates representing all of the equity interests and registered all promissory notes required to be pledged thereunder, accompanied by undated stock powers and allonges executed in blank and other proper instruments of transfer and (B) any copyright, patent and trademark agreements required by the name terms of such Lender or its designeethe Security Agreement. (xi) Such Buyer shall have received the Company’s wire instructions on Company letterhead duly executed by an authorized officer of the Company.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The sale and purchase of the aggregate purchase price (the “Closing Note Purchase Price”) of the Initial Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders Purchaser shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx Shearman & Sterling LLP, 000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXxx Xxxx, Xxxxxxxx 00000. The date and time of the Closing at 9:00 a.m., Eastern time, at a closing (the “Closing NPA Funding Date”) on such day as is designated by the Borrower at least three (3) Business Days prior thereto, which day shall be 10:00 a.m.on or prior to October 1, Chicago time2018. At the NPA Funding Date, on the date hereof, subject Borrower will deliver to notification each Initial Purchaser the Initial Notes to be purchased by such Initial Purchaser in the form of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below a single Initial Note (or such later greater number of Initial Notes in denominations of at least $100,000 as such Purchaser may request) dated the date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price NPA Funding Date and registered in such Initial Purchaser’s name (or in the name of its nominee), against delivery by such Initial Purchaser to the Borrower for or its order of immediately available funds in the Notes to be issued and sold to such Lender at amount of the Closing, purchase price therefor by wire transfer of immediately available fundsfunds to the account specified in the Funds Flow Memorandum, for distribution, notwithstanding anything to the contrary in the Intercreditor Agreement or any other Financing Document (as more fully set forth on defined in the Schedule of Lenders and (ii) Intercreditor Agreement), in accordance with the Funds Flow Memorandum. If at the NPA Funding Date, the Borrower shall deliver fail to each Lender the tender such Initial Notes (to any Initial Purchaser as provided above in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingthis Section 3.1, duly executed on behalf or any of the conditions specified in Article 4 shall not have been fulfilled to such Initial Purchaser’s satisfaction, such Initial Purchaser shall, at its election, be relieved of all further obligations under this Agreement and each other Credit Document, without thereby waiving any rights such Initial Purchaser may have by reason of any of the conditions specified in Article 4 not having been fulfilled to such Purchaser’s satisfaction or such failure by the Borrower and registered in the name of to tender such Lender or its designeeInitial Notes.

Initial Closing. In consideration for (i) The initial closing of the sale and purchase of the Notes (the “Initial Closing”) shall be held at such date and time (the “Initial Closing Date”) as the Company and Required Purchasers (as defined below) shall agree. At the Initial Closing the Purchasers will purchase an aggregate of at least $2,500,000.00 of Notes as follows: (A) each applicable LenderPurchaser shall deliver to the Company by check or wire transfer of immediately available funds such Purchaser’s payment Initial Loan Amount set forth opposite each such Purchaser’s name under the heading “Initial Loan Amount” on the Schedule of its Purchasers attached hereto (such Purchaser’s “Initial Loan Amount”) and (B) the Company shall issue and deliver to each Purchaser a Note in favor of such Purchaser in the corresponding principal amount equal to such Purchaser’s Initial Loan Amount. (ii) After the Initial Closing, subsequent sale(s) and purchase(s) of Notes may occur from time to time (each such closing an “Additional Initial Closing” and together with the Initial Closing, the “Initial Closings”) to one or more purchasers (the “Additional Purchasers”) on the same terms and conditions as those contained in this Agreement, provided that (A) in no event shall the aggregate principal amount of all Notes sold at the Initial Closings exceed $3,814,759.51, (B) any Additional Initial Closing(s) shall be consummated no later than twenty-one (21) days after the Initial Closing Date (the date of any Additional Initial Closing shall be referred to herein as an “Additional Initial Closing Date”), (C) each Additional Purchaser shall become a party to the Transaction Agreements, and (D) each of the Purchasers is given prompt notice of the consummation of any such Additional Initial Closing. The Schedule of Purchasers to this Agreement shall be updated to reflect the aggregate principal amount of any Notes purchased at each such Additional Initial Closing and the parties purchasing such Notes. The Schedule of Purchasers shall also be updated to reflect the Additional Purchaser(s)’ pro rata share of the $5,000,000.00 in aggregate purchase price (the “Closing Note Purchase Price”) principal amount of the Notes to be purchased by the Lenders at the Closing (any Subsequent Closing, as defined below), which is set forth opposite such Lender’s name below. At any Additional Initial Closing, the representations and warranties of the Company in column four Section 3 hereof (4) of and the Schedule of Lenders attached hereto, Exceptions delivered to the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and Purchasers in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Initial Closing (the “Closing DateSchedule of Exceptions”)) shall be 10:00 a.m., Chicago time, on deemed to speak as of the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Additional Initial Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing DateCompany shall, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closingif necessary, by wire transfer of immediately available funds, as more fully set forth on update the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations Exceptions as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeAdditional Initial Closing.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “"Initial Closing”") of the transactions contemplated by this Agreement purchase and sale of the Shares and the issuance of the Notes to Initial Transferred Interest shall be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur held at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP& Xxxxxxxx, 000 Xxxx Xxxxxx Xxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXxx Xxxx, Xxxxxxxx 00000. The at 10:00 a.m. on a date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on that is no later than five business days after the date hereof, subject to notification of satisfaction (or waiver) of on which the conditions to the Initial Closing set forth in Section 5.1 below (7.01 shall have been satisfied or such later waived. The date on which the Initial Closing shall occur is hereinafter referred to as is mutually agreed to by the Borrower and the Agent). On the "Initial Closing Date". At the Initial Closing, (ia)(i) each Lender RGC shall pay its pro rata share of deliver, or the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender parties, at the Closingelection of RGC, shall cause MSGE to deliver, to ITTE, by wire transfer of to a bank account designated by ITTE at least two business days prior to the Initial Closing Date, immediately available funds, as more fully set forth on funds in an amount equal to the Schedule of Lenders Shares Purchase Price and (ii) the Borrower ITTE shall deliver to each Lender RGC or MSGE, as the Notes case may be, certificates representing the Shares, duly endorsed in blank or accompanied by stock powers duly endorsed in blank in proper form for transfer, with appropriate transfer stamps, if any, affixed and (in b)(i) GHC shall deliver, or the denominations as such Lender parties shall, if GHC shall have requested elected for MSG to redeem the Initial Transferred Interest, cause MSG to deliver, to ITT MSG, by wire transfer to a bank account designated by ITT MSG at least two business days prior to the ClosingInitial Closing Date, immediately available funds in an amount equal to the Initial Transferred Interest Purchase Price and (ii) which such Lender is then purchasingITT MSG shall deliver to GHC or MSG, duly executed on behalf as the case may be, a Xxxx of the Borrower Sale and registered Assignment of Partnership Interest in the name form of such Lender or its designeeExhibit A to effect delivery of title to the Initial Transferred Interest.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The delivery of the aggregate purchase price Initial Purchase Price Payment and of the Initial Closing Securities (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPWachtell, 000 Lipton, Xxxxx & Xxxx, 00 Xxxx Xxxxxx 00xx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXX, Xxxxxxxx 00000. The date and time of the Closing 00000 at 10:00 a.m. (the “Closing Date”) shall be 10:00 a.m.local time), Chicago timeas soon as practicable, on but no later than the date hereof, subject that is two (2) business days following the satisfaction or waiver (to notification of satisfaction (or waiverthe extent permitted by applicable Law) of the conditions to the Closing set forth in Section 5.1 below (6, or at such later date other time and place as is mutually agreed to by the Borrower Company and the AgentInvestor shall mutually agree in writing (the “Initial Closing Date”). On In lieu of an in-person Initial Closing, the Initial Closing Date, may instead be accomplished by e-mail (iin PDF format) each Lender shall pay its pro rata share transmission to the respective offices of legal counsel for the parties hereto of the Closing Note requisite documents, duly executed where required, delivered upon actual confirmed receipt, with originals to be delivered as promptly as practicable following the Initial Closing. At the Initial Closing: (a) the Company shall deliver to the Investor certificates or book-entry statements representing the number of shares of Common Stock set forth in Section 2.1, and the Company shall execute and deliver the Securities Issuance Deliverables with respect to the Common Stock to the Investor; (b) the Investor shall make payment of the Initial Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, Payment by wire transfer of immediately available funds, as more fully set forth on funds to an account designated by the Schedule Company at least two (2) business days in advance of Lenders and the Initial Closing Date; (iic) the Borrower Investor shall have delivered to the Company a properly completed and executed Internal Revenue Service Form W-9, certifying that the Investor is a U.S. Person exempt from back-up withholding; (d) the Company and the Investor shall each execute and deliver to the other the executed Contingent Payment Right Agreement, and the Company shall execute and deliver the Securities Issuance Deliverables with respect to the Contingent Payment Right to the Investor; (e) the Company and the Investor shall each Lender execute and deliver to the Notes other the executed Registration Rights Agreement; and (in f) the denominations as such Lender Company shall have requested execute and deliver the Note and the Securities Issuance Deliverables with respect to the Note into the Escrow, which Note and Securities Issuance Deliverables shall be automatically released from the Escrow upon the occurrence of the Second Closing (unless the Note has been released from the Escrow to the Investor prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered Second Closing in the name of such Lender or its designeeaccordance with Section 2.3).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (a) On the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased date this Agreement is executed by the Lenders at parties or such later date as shall be mutually agreed upon by the Closing (as defined below)parties, which date shall not occur on a date that is set forth opposite such Lender’s name in column four later than ninety (490) calendar days after the date as of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by which this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing is executed (the “Closing Date”): (i) DMI I shall make a Capital Contribution of $12,000,000 to MSF I (the “Initial Fortress Investment Amount”); and (ii) Medley shall make a Capital Contribution of $3,000,000 to MSF I (the “Initial Medley Investment Amount” and, together with the Initial Fortress Investment Amount, the “Initial Investment Amounts”). (b) DMI I’s obligation to contribute the Initial Fortress Investment Amount to MSF I pursuant to Section 3.1(a) above shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the following conditions to as of the Closing Date: (i) Medley shall have delivered a Drawdown Notice to DMI I in accordance with the procedures set forth in Section 5.1 below 3.3 below; (ii) Each of the representations and warranties of the parties set forth in Article X hereof shall be true and correct in all material respects; (iii) Medley shall have reimbursed Fortress Credit Co LLC for its “Investor Expenses” in accordance with the terms of Annex A to the Letter Agreement between Medley and Fortress Credit Co LLC, dated May 5, 2016; (iv) An Event of Default (as such term is defined in either the Medley Credit Agreement or the MCC Credit Agreements) shall not have occurred and be continuing; (v) A Put Option Trigger Event shall not have occurred and be continuing; (vi) Neither Medley nor any of the SPVs shall be in material breach of this Agreement or any of the SPV LLC Agreements; (vii) Medley shall have caused MSF I and MSF II, respectively, to admit DMI I as a member such later that, immediately following the Closing, (A) Medley shall hold 100% of the outstanding MSF I Common Interest and DMI I shall hold 100% of the outstanding MSF I Preferred Interest, and (B) Medley shall hold 100% of the outstanding MSF II Common Interest and DMI I shall hold 100% of the outstanding MSF II Preferred Interest; (viii) Medley shall have caused MSF III to have been admitted as a member of STRF Advisor to hold the STRFA Equity Interest, provided that this condition shall not apply to any Closing Date or Drawdown date that occurs prior to the date on which STRF commences operations; (ix) Medley shall have caused MSF III to have admitted DMI II as is mutually agreed a member such that, immediately following the Closing, Medley shall hold 100% of the outstanding MSF III Common Interest and DMI II shall hold 100% of the outstanding MSF III Preferred Interest; and (x) Medley shall have delivered to by the Borrower and Fortress Investors on the Agent). On Closing Date evidence of that its Capital Contribution to the applicable SPV(s) has been made as of such date. (c) Following the Closing Date, (i) each Lender Medley shall pay its pro rata share of cause MSF I to use the Closing Note Purchase Price to the Borrower Initial Investment Amounts for the Notes to be issued and sold to such Lender at the Closing, by wire transfer sole purpose of immediately available fundsacquiring MCC Stock, as more fully set forth on the Schedule soon as reasonably practicable in light of Lenders and prevailing market conditions through an open market purchase program undertaken in accordance with applicable laws (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeean “MCC Stock Purchase Program”).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (i) Not less than five (5) Business Days prior to the Initial Closing Date, the Sellers shall prepare, or cause to be prepared, and will deliver to the Buyer (1) an estimated closing statement with respect to the portion of the aggregate purchase price Business conducted in the Initial Closing Territory as of the Initial Closing Date (the “Estimated Initial Closing Note Purchase PriceStatement”) ), signed by an authorized officer of the Notes to be purchased by the Lenders at the Closing Sellers (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender the Sellers), which sets forth solely with respect to the portion of the Business conducted in the Initial Closing Territory, (A) the Estimated Initial Closing Net Working Capital Amount, (B) (I) the Estimated Initial Closing Net Working Capital Surplus, if any, or its designee.(II) the Estimated Initial Closing Net Working Capital Deficit, if any, (C) the Estimated Initial Closing Other Third-Party Brand Amount, (D) (I) the Estimated Initial Closing Other Third-Party Brand Surplus, if any, or (II) the Estimated Initial Closing Other Third-Party Brand Deficit, if any, (E) the Estimated Initial Closing DP Amount, (F) (I) the Estimated Initial Closing DP Surplus, if any, or (II) the Estimated Initial Closing DP Deficit, if any, (G) the Estimated Initial Closing Residual Transferred Assets Amount, (H) (I) the Estimated Initial Closing Residual Transferred Assets Surplus, if any, or (II) the Estimated Initial Closing Residual Transferred Assets Deficit, if any, (I) the Estimated Initial Closing Other Assets and Liabilities Amount, (J) (I) the Estimated Initial Closing Other Assets and Liabilities Surplus, if any, or (II) the Estimated Initial Closing Other Assets and Liabilities Deficit, if any, (K) the Estimated Initial Closing Retained Assets Amount, (L) the Estimated Initial Closing Retained Liabilities Amount, and (2) the unaudited balance sheet with respect to the portion of the Business conducted in the Initial Closing Territory as of the Business

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of At the aggregate purchase price (Initial Closing, the “Closing Note Purchase Price”) of the Notes Sellers shall deliver or cause to be purchased by delivered to the Lenders at Buyer: (i) a receipt for the Initial Closing Cash Payment; (ii) the Initial Closing Xxxx of Sale, Assignment and Assumption Agreement and all such other deeds, bills of sale, endorsements, consents, assignments and other good and sufficient instruments of conveyance and assignment as defined below)the parties and their respective counsel shall deem reasonably necessary or appropriate to vest in the Buyer all right, which is set forth opposite such Lender’s name in column four title and interest in, to and under the Initial Closing Transferred Assets; (4iii) with respect to each parcel of Owned Real Property included within the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Initial Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing DateTransferred Assets, a Note, special warranty deed in substantially the form attached hereto as Exhibit AB (each, a “Deed”), duly executed and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof notarized by the applicable Lenders Seller, with such modifications as to form (but not the scope of warranty) as are necessary to conform to applicable local requirements; (iv) with respect to each Leased Real Property included within the Initial Closing Transferred Assets, an Assignment and Assumption of Lease substantially in the form attached hereto as Exhibit C (each, an “Assignment and Assumption of Lease”), duly executed by the applicable Seller and, if necessary, such Seller’s signature shall occur be witnessed and/or notarized; (v) a certificate pursuant to Treasury Regulations Section 1.1445-2(b) executed by each Seller that such Seller is not a foreign person within the meaning of Section 1445 of the Code, together with such other certificates or undertakings as shall be reasonably required to permit the Initial Closing Cash Payment to be paid without provision for withholding Taxes under the Laws of any applicable jurisdiction; provided, that any failure by the Sellers to deliver any such certificates or undertakings at the offices Initial Closing will not be deemed to constitute the failure of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing any condition set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower Article VII, and the Agent). On Buyer’s sole remedy in respect thereof will be to withhold an appropriate amount of Taxes from the Initial Closing Date, Cash Payment; and (ivi) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes other documents and certificates required to be issued and sold delivered pursuant to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSection 7.01(c).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (a) The purchase and sale of the aggregate Initial Closing Securities shall take place at the offices of Proskauer Rose LLP, 0 Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000 by electronic exchange of documents and signatures on the earlier to occur of (i) the closing date of the merger contemplated by the Merger Agreement, and (ii) February 28, 2017 (which time and place are designated as the “Initial Closing”), unless a different date is otherwise agreed to by the Company and each Purchaser who is obligated to purchase price a Note at the Initial Closing in a principal amount of at least $1,000,000. The Initial Closing shall be deemed to have occurred at 10 a.m. local time on such date (the “Initial Closing Date”). (b) At the Initial Closing, the Company shall deliver to each Purchaser (i) a Note Purchase Price”representing the principal face amount set forth opposite such Purchaser’s name under the heading “Initial Closing Notes” on Exhibit A-1 hereto and (ii) if applicable, a Warrant to initially purchase the number of Warrant Shares set forth opposite such Purchaser’s name on Exhibit A-1 hereto, against payment of the purchase price therefor by (w) check payable to the Company, (x) wire transfer to the bank account designated by the Company, (y) cancellation or conversion of the indebtedness of the Company to Purchaser (or one or more of its Affiliates) specified on Exhibit A-1 hereto, or (z) any combination of such methods. Notwithstanding anything to the contrary herein, in the event the Initial Closing shall occur in connection with the closing under the Merger Agreement, then the Company shall not be required to physically deliver any Note or Warrant hereunder and, in lieu thereof, each Purchaser shall have the right to receive the applicable number of shares of common stock and warrants of Pubco pursuant to the terms of the Merger Agreement. (c) Prior to the Initial Closing, the Company may agree to sell, on the same terms and conditions as those contained in this Agreement, additional Initial Closing Notes to one or more purchasers (the “Additional Purchasers”), provided that (i) such sale is consummated at the Initial Closing and (ii) each Additional Purchaser shall become a party to the Transaction Agreements by executing and delivering a counterpart signature page to each of the Transaction Agreements. Exhibit A-1 to this Agreement shall be updated to reflect the number of additional Initial Closing Notes to be purchased by the Lenders at the Initial Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the parties purchasing such additional Initial Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeNotes.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The consummation of the aggregate purchase price transactions contemplated in Section 2.1 (the “Closing Note Purchase PriceInitial Closing”) shall take place remotely via the exchange of the Notes documents and signatures as soon as practicable and in any event within fifteen (15) Business Days after all closing conditions specified in Section 5, and Section 6 have been satisfied (other than those conditions that by their terms are to be purchased by satisfied at Initial Closing, but subject to the Lenders satisfaction thereof at the Closing Initial Closing) or otherwise waived or at such time and place as the Company and the Initial Investors may agree upon in writing. At the Initial Closing: (i) Each Initial Investor shall pay, or cause to be paid, to the Company, the Initial Subscription Consideration as defined below), which is set forth opposite such LenderInitial Investor’s name in column four Part 1 (4Initial Transaction) of the Schedule of Lenders Exhibit C attached hereto, to an account notified in writing by the Borrower shall issue and sell Company no less than five (5) Business Days prior to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of in immediately available funds, as more fully set forth on the Schedule of Lenders and ; (ii) the Borrower The Company shall deliver to each Lender Initial Investor a photocopy of the Notes (share certificate representing the Series G-1 or Series G-2 Preferred Shares, as applicable, purchased by such Initial Investor in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingInitial Transaction, duly executed on behalf against payment of the Borrower relevant Initial Subscription Consideration (with the original share certificate to be delivered by the Company within ten (10) days following the Initial Closing); (iii) The Company shall, against payment of the Initial Subscription Consideration, (I) update the register of members of the Company to reflect the Initial Share Subscription Transaction, and (II) deliver to each Initial Investor a photocopy of the updated register of members certified by the Chief Executive Officer of the Company (with a copy certified by the registered in the name of such Lender agent (or its designeesub-agent) of the Company to be delivered within ten (10) days following Initial Closing); and (iv) The Company shall, upon the Initial Closing, (I) update the register of directors of the Company to reflect appointment of the new directors designated by the Initial Investors, and (II) deliver to each Initial Investor that appointed a new director a photocopy of the updated register of directors of the Company certified by the Chief Executive Officer of the Company (with a copy certified by the registered agent (or its sub-agent) of the Company to be delivered within ten (10) days following Initial Closing).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The purchase and sale of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders Series D Preferred Shares shall take place at the Closing offices of Hale and Dorr LLP, 300 Park Avenue, New York, New York at 10:00 A.M. ox xxe datx xxxxxxxxx xxx Xxxxxxxxx Xxxx (xx xxxxxxx xx the Collaboration Agreement) on which the Escrow Agent delivers the Escrow Fund (as defined below), which is set forth opposite such Lender’s name in column four (4the Escrow Agreement) to Eyetech pursuant to the terms of the Schedule Escrow Agreement, or at such other time and place as the Company and the Investor mutually agree upon orally or in writing (which time and place are designated as the "INITIAL CLOSING"). At the Initial Closing: (a) The Company shall deliver to the Investor a certificate representing the Series D Preferred Shares, against receipt of Lenders attached heretothe purchase price therefor from the Escrow Agent; (b) The Company, the Borrower Investor and certain other stockholders of the Company shall issue deliver the Amended and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, Restated Investors' Rights Agreement in substantially the form attached hereto as Exhibit AB (the "INVESTORS' RIGHTS AGREEMENT"); (c) The Company, the Investor and certain other stockholders of the Company shall deliver the Amended and Restated Right of First Refusal and Co-Sale Agreement in the aggregate principal amount form attached hereto as is set forth opposite such Lender’s name in column four Exhibit C (4the "CO-SALE AGREEMENT"); and (d) The Company, the Investor and certain other stockholders of the Schedule of Lenders Company shall deliver the Amended and Restated Voting Agreement in the form attached hereto. The closing hereto as Exhibit D (the “"VOTING AGREEMENT," and together with the Co-Sale Agreement, the "ANCILLARY AGREEMENTS"). Pending the Initial Closing”) , each of the transactions contemplated by this Investors' Rights Agreement, the Co-Sale Agreement and the issuance of the Notes to be issued on the Closing Date Voting Agreement have been executed by the Borrower requisite parties thereto and the purchase thereof are being held by the applicable Lenders shall occur at Company pending effectiveness. At the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPInitial Closing, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) such agreements shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing delivered as set forth above in this Section 5.1 below (or such later date as is mutually agreed to by 1.2 and shall become effective. Notwithstanding the Borrower and the Agent). On the Closing Dateforegoing, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations event that the Investor or the Company exercises its right under the Collaboration Agreement to terminate the Transaction Agreements (as such Lender shall have requested defined in the Collaboration Agreement) prior to the Closing) which such Lender is then purchasingEffective Date, duly executed on behalf all rights and obligations of the Borrower parties under this Agreement shall then also terminate and registered in the name of such Lender or its designeeInvestors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement shall not become effective.

Initial Closing. In consideration for each applicable Lender’s payment (i) The initial closing of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of SNR Xxxxxx Xxxxxx Xxxxxxxx US LLP, 000 Xxxx Xxxxxx located at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXxx Xxxx, Xxxxxxxx 00000. Such closing (the “Initial Closing”) will take place at 10:00 A.M., local time, on such date as may be mutually agreed upon by the Company and the Lenders. The date and time of the Initial Closing (is referred to herein as the “Initial Closing Date.” (ii) At the Initial Closing, the Company shall be 10:00 a.m.sell Notes to each of the Participating Lenders in an aggregate principal amount equal to $1,122,000, Chicago timeplus the Advance Interest Amount, by delivering to each Participating Lender a Note in an amount equal to 56.14% of its First Loan Commitment Amount plus any Advance Interest Amount on Advances made by it, together with the date other documents referenced in Section 2 hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth and in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Dateexchange therefor, (i) each Participating Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender make a payment at the Closingthat time, by wire transfer payable to the Company of immediately available fundssuch portion of its First Loan Commitment Amount less the Advances funded by it, as more fully set forth on Schedule 1.2. The Notes shall be registered in each Participating Lender’s name or the Schedule name of Lenders and (iiits nominee(s) the Borrower shall deliver to each Lender the Notes (in the such denominations as such Participating Lender shall have requested request pursuant to instructions delivered to the Company not less than two (2) days prior to the ClosingInitial Closing Date. (iii) which such Lender is then purchasing, duly executed on behalf In accordance with the terms of the Borrower Third Amended and Restated Stockholders’ Agreement, the Company will offer each existing holder of its Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock (other than the Lenders initially signatories hereto) the right to purchase Notes equal to a fraction of the First Loan Amount (its “Pro Rata Portion”), the numerator of which shall be equal to the sum of the number of shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock held by such holder or issuable to such holder upon the exercise of any outstanding options or warrants exercisable therefore, and the denominator of which shall be equal to the sum of the number of shares of all issued and outstanding Series A Preferred Stock, Series B Preferred Stock and Series C Preferred and the number of shares of any such stock issuable upon the exercise of all outstanding options and warrants exercisable therefore. In the event a stockholder wishes to acquire its Pro Rata Portion (a “Participating Stockholder”), such Participating Stockholders shall provide the Company with written notice thereof, together with a counterpart signature page to this Agreement (pursuant to which it will become a Participating Lender for all purposes from and after its execution thereof) and each of the Transaction Documents and will fund 56.14% of its Pro Rata Portion no later than five (5) days following its notice to the Company that it intends to acquire Notes, and will be issued a Note in the amount so funded. Each Participating Stockholder will be obligated to fund the balance of its Pro Rata Portion at the Second Closing. (iv) At the Initial Closing, the Exchanging Lenders will exchange all of the Existing Notes together with all accrued interest thereon for Notes, in the amounts set forth on Schedule 1.2, as detailed on Schedule 1.2(a). The Notes shall be registered in each Exchanging Lender’s name or the name of its nominee(s) in such denominations as such Exchanging Lender shall request pursuant to instructions delivered to the Company not less than two (2) days prior to the Initial Closing Date. Each of the Exchanging Lenders hereby acknowledges and agrees as follows: (a) the principal amount of the Note to be issued in exchange for its Existing Notes as set forth on Schedules 1.2 and 1.2(a), represents the entire amount owed to such Exchanging Lender in respect of its Existing Notes, (b) except for Article 8 (Collateral) and Section 12.12 (MVP II as Agent) of each of the Note and Warrant Purchase Agreements dated as of September 30, 2009 and February 18, 2010 and Article 10 (Collateral) and Section 15.12 (MVP II as Agent) of the Note Purchase Agreement dated May 5, 2010, each of the Existing Agreements is hereby terminated and of no further force or its designeeeffect and (c) MVP II, acting as Agent under the Existing Agreements and Existing Notes, is hereby authorized to assign all of the Exchanging Lender’s rights in and to the security interests granted to MVP II, as Agent for the Exchanging Lenders under the Existing Agreements, to MVP II, as Agent under the Notes, including without limitation, pursuant to any outstanding Mortgage, Security Agreement, Assignment of Leases and Fixture Financing Statement and Assignment of Leases and Rents relating the Company’s Baudette, MN facility as well as any outstanding UCC-1 financing statement.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and US_142974558 the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of On the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on first Business Day after the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below hereof (or such later date as is mutually agreed to by the Borrower Purchaser and the AgentCompany) (the “Initial Closing”). On , and upon the Closing Dateterms and subject to the satisfaction (or waiver) of all the conditions set forth in Sections 5(a) and 6(a) hereof, the Company will: (i) each Lender issue and sell to the Purchaser, and the Purchaser shall pay purchase from the Company, the Tranche A Note in exchange for the Purchaser’s payment of $300,000 (“Tranche A Amount”) as further described in Section 2(a), provided that such Tranche A Note may be amended and restated in its pro rata share entirety prior to the Second Closing to reflect review and comment by counsel to Purchaser; and (ii) issue the Warrant with respect to the Tranche A Amount to Purchaser substantially in the form of Exhibit D attached hereto (the “Warrant”), which Warrant shall provide that as of the Closing Note Purchase Price Effective Date, Purchaser may immediately exercise the number of shares of Warrant Stock that it is entitled to purchase as a result of the delivery by the Purchaser to the Borrower for Company of the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available fundsTranche A Amount, as more fully set forth on calculated by the Schedule of Lenders formula in the Warrant, provided that prior to the Second Closing: (A) the Warrant may be amended and restated in its entirety to reflect review and comment by counsel to Purchaser, and (ii) the Borrower Company shall deliver have filed an amendment to each Lender its Certificate of Incorporation, if necessary, so that it shall have a sufficient number of authorized and unissued shares of its Common Stock to enable it to issue the Notes number of shares of Warrant Stock (as defined in the denominations as such Lender shall have requested prior Warrants) that may be issued to Purchaser pursuant to the Closing) which such Lender is then purchasingWarrants, duly executed on behalf assuming that the Purchaser acquires the Tranche A Note, the Tranche B Note and all Additional Notes. Notwithstanding the actual date of the Borrower and registered in Initial Closing, the name of such Lender or its designeeInitial Closing shall be deemed for all purposes to have occurred on June 30, 2012 (“Effective Date”).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (i) Subject to and in reliance upon the aggregate purchase price representations and warranties set forth in Section 3 below, and the satisfaction (the “Closing Note Purchase Price”or waiver) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is conditions set forth opposite such Lender’s name in column four Sections 6 and 7 below, (4i) of the Schedule of Lenders attached hereto, the Borrower Company shall issue and sell to such Lender on the Closing Date (as defined below)each Buyer, and each applicable Lender Buyer severally, but not jointly, agrees to purchase from the Borrower Company on the Initial Closing DateDate (as defined below), a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount of Debentures as is set forth opposite such LenderBuyer’s name in column four (3) on the Schedule of Buyers and (ii) the Company shall deliver or cause to be delivered to each Buyer on the Initial Closing Date (as defined below) the number of Closing Securities as is set forth opposite such Buyer’s name in column (4) of on the Schedule of Lenders attached heretoBuyers. The aggregate purchase price (the “Initial Purchase Price”) of the Debentures and Closing Securities to be purchased by the Buyers at the Initial Closing shall be equal to $6,300,000. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement purchase of the Debentures and the issuance of the Notes to be issued on the Closing Date Securities by the Borrower and the purchase thereof by the applicable Lenders Buyers shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx XxXxxxxxx Will & Xxxxx LLP, 000 Xxxx Xxxxxx Xxxxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, Xxxxxxx, Xxxxxxxx Xxx Xxxx 00000. The date and time of the Closing (the “Initial Closing Date”) shall be 10:00 a.m., Chicago timeNew York City Time, on the date hereof, subject to notification of satisfaction . (or waiverii) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Initial Closing Date, (i) each Lender Buyer shall pay its pro rata share of the Closing Note aggregate Initial Purchase Price to the Borrower Company for the Notes Debentures and Closing Securities to be issued and sold to such Lender Buyer at the Initial Closing, by wire transfer of immediately available fundsfunds in accordance with Company’s written wire instructions, as more fully set forth on the Schedule of Lenders and (ii) the Borrower Company shall deliver to each Lender Buyer (A) the Notes Debentures (in the denominations as such Lender Buyer shall have requested prior to the Closing) which such Lender Buyer is then purchasing, duly executed on behalf of the Borrower Company and registered in the name of such Lender Buyer or its designee and (B) the Closing Securities (in the denominations as such Buyer shall have requested prior to the Closing) which such Buyer is then purchasing, duly executed on behalf of the Parent and registered in the name of such Buyer or its designee.. NYK 1088891-10.079338.0012

Initial Closing. In consideration for each applicable Lender’s payment On the Initial Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased this Agreement by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached parties hereto, the Borrower shall issue and sell Company agrees to such Lender on the Closing Date (as defined below)sell, and each applicable Lender severallyof the Purchasers, but severally and not jointly, agrees to purchase from Shares and Warrants for an aggregate purchase price of up to $2,500,000 but not less than $1,750,000 (such purchase and sale being the Borrower “Initial Closing”). To the extent any Person entitled to participate in the Offering, pursuant to the exercise of rights granted to such Person under the 2013 Securities Purchase Agreement, timely provides notice to the Company of its intent to so participate, the Company may issue and sell Shares and Warrants to one or more such parties on one or more dates on or following the Initial Closing Date, a Note, but in substantially any event no later than fifteen (15) days following the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Initial Closing Date, (i) and each Lender such purchase and sale shall pay its pro rata share be deemed a part of the Closing Note Purchase Price “Initial Closing”, provided that, concurrently with any such purchase and sale, each such Person executes a counterpart signature page to this Agreement to become a “Purchaser” under this Agreement. Prior to the Borrower for the Notes to be issued and sold to such Lender at the Initial Closing, each Purchaser shall deliver to the Escrow Agent such Purchaser’s Initial Closing Subscription Amount as set forth on the signature page hereto executed by such Purchaser by a wire transfer of immediately available funds, such amount to be held in a non-interest-bearing escrow account, and the Company shall, on the Initial Closing Date, deliver to each Purchaser a certificate representing the number of Shares and Warrants purchased by such Purchaser at the Initial Closing as more fully determined pursuant to Section 2.2(a), subject to the restrictions on delivery of Shares to each of GCP IV LLC, Alpha Capital Anstalt, Xxxxx Xxxxx and GRQ Consultants, Inc. 401K as set forth in the Right to Shares Letter Agreements of even date herewith, a copy of each of which is attached hereto as Exhibit “C”. The Company and each Purchaser shall also deliver the other items set forth in Section 2.2 deliverable at the Initial Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Initial Closing shall occur at the offices of G&M or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, the Initial Closing Date shall occur on or before September 18, 2013 (such outside date, “Termination Date”). If the Schedule of Lenders Initial Closing is not held on or before the Termination Date, the Escrow Agent shall cause (i) all subscription documents executed by the Company or a Purchaser to be returned to the Company or such Purchaser, as applicable, and (ii) the Borrower shall deliver each Subscription Amount to each Lender the Notes (in the denominations as such Lender shall have requested prior be returned, without interest or deduction to the Closing) which Purchaser who delivered such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSubscription Amount.

Initial Closing. In consideration for (a) The closing of the Perpetual Preferred Share Purchase (the “Initial Closing”) shall occur immediately after the consummation of the Merger (the date on which the consummation of the Merger occurs, the “Initial Closing Date”), subject only to the satisfaction or (to the extent permitted by law) waiver of the conditions to the Initial Closing set forth in Section 1.02(c) and 1.02(d), at the offices of Shearman & Sterling LLP, 599 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless another time, date or place is agreed to in writing by the Investors and the Company. (b) At the Initial Closing, (i) the Company shall deliver to each applicable LenderInvestor certificates representing the Purchased Perpetual Preferred Shares to be sold to such Investor, duly registered in the name of such Investor, and (ii) each Investor shall pay to the Company the amount set forth opposite such Investor’s name on Schedule I hereto, and such payment shall be (A) in the case of each Trust, effected as a deduction from the Merger Consideration (as defined in the Merger Agreement) to be received by such Investor pursuant to and in accordance with the terms of the Merger Agreement and (B) in all other cases, effected as a deduction from the Merger Consideration to be received by such Investor pursuant to and in accordance with the terms of the Merger Agreement; provided, however, that the Company will cooperate with such Investor in respect of the allocation of preferred stock certificates among such Investor’s accounts and in respect of the appropriate allocation of cash deposits (the deductions described in (A) and (B) above, each a “Perpetual Preferred Deduction”). (c) The respective obligation of each Investor and the Company to effect the Perpetual Preferred Share Purchase is subject to the satisfaction at the Initial Closing of each of the following conditions: (i) no injunction, restraint or prohibition by any court or other tribunal of competent jurisdiction which prohibits the Perpetual Preferred Share Purchase shall have been entered and shall continue to be in effect; and (ii) the merger of Ramses Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of the Company (“Ramses”), with and into Rohm and Xxxx Company, a Delaware corporation (the “Merger”), shall have been consummated in accordance with the terms of the Merger Agreement. (d) The obligation of each Investor to effect the Perpetual Preferred Share Purchase is also subject to the satisfaction or waiver by such Investor at or prior to the Initial Closing of each of the following conditions: (i) each Investor shall have been paid by wire transfer of immediately available funds the Merger Consideration (as reduced by the Perpetual Preferred Deduction and, in the case of each Trust and so long as the Company has not exercised its pro rata share Option, the Convertible Preferred Deduction) to be received by such Investor pursuant to and in accordance with the terms of the Merger Agreement; (ii) each Investor shall have been paid on the date of this Agreement by wire transfer of immediately available funds a commitment fee equal to 2.25% of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such LenderInvestor’s name on Schedule I hereto) to be paid by such Investor for the Purchased Perpetual Preferred Shares to be sold to such Investor; (iii) the Purchased Perpetual Preferred Shares shall have been duly authorized and, when issued and delivered in column four accordance with the terms of this Agreement, will be (4A) validly issued, fully paid and nonassessable, (B) not have been issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right and (C) be free and clear of all pledges, liens, charges, mortgages, encumbrances or security interests of any kind or nature whatsoever other than those for the benefit of any Investor or affiliate thereof; (iv) the Board of Directors of the Schedule Company shall have duly adopted resolutions approving the Perpetual Preferred Certificate of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below)Designations, and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on Company shall have filed the Closing Date, a Note, in substantially Perpetual Preferred Certificate of Designations with the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) Secretary of State of the Schedule State of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement Delaware and the issuance Perpetual Preferred Certificate of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders Designations shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing have become effective; (the “Closing Date”v) each Trust shall be 10:00 a.m., Chicago time, have been paid on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, this Agreement by wire transfer of immediately available funds, as more fully funds a commitment fee equal to 0.75% of the aggregate purchase price (set forth opposite such Trust’s name on Schedule II hereto) to be paid by such Trust for the Schedule Purchased Convertible Preferred Shares to be sold to such Trust; (vi) so long as the Company has not exercised its Option, the Purchased Convertible Preferred Shares shall have been duly authorized and, when issued and delivered in accordance with the terms of Lenders this Agreement, will be (A) validly issued, fully paid and nonassessable, (B) not have been issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right and (iiC) be free and clear of all pledges, liens, charges, mortgages, encumbrances or security interests of any kind or nature whatsoever other than those for the Borrower shall deliver to each Lender benefit of any Investor or affiliate thereof; and (vii) so long as the Notes (in Company has not exercised its Option, the denominations as such Lender Board of Directors of the Company shall have requested prior to duly adopted resolutions approving the Closing) which such Lender is then purchasingConvertible Preferred Certificate of Designations, duly executed on behalf and the Company shall have filed the Convertible Preferred Certificate of Designations with the Secretary of State of the Borrower State of Delaware and registered in the name Convertible Preferred Certificate of such Lender or its designeeDesignations shall have become effective.

Initial Closing. In consideration for each applicable Lender’s payment (a) Subject to and in accordance with the provisions of its pro rata share this Agreement, the closing of the aggregate purchase price and sale of the First Tranche Subject Shares (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur will take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPXxxxx Xxxxx L.L.P., One Shell Plaza, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000Xxxxxxxxx Xx., Xxxxxxx, Xxxxxxxx 00000. The Xxxxx 00000 on the date and time of the Closing hereof (the “Initial Closing Date”). (b) At the Initial Closing: (i) Seller shall deliver to the Notary: (1) a written shareholders’ resolution approving the transfer of the First Tranche Subject Shares and Second Tranche Subject Shares, duly executed by Seller and Vinccler; (2) the shareholders’ register of HVDH; (3) duly legalized power-of-attorney with respect to execution of the First Tranche Deed of Transfer; (4) and such other documents as may be customary and required under applicable Law, or reasonably required by the Notary for the consummation of the transfer of the First Tranche Subject Shares to Buyer. (ii) Buyer shall transfer the First Tranche Purchase Price in accordance with Section 2.1(b). (iii) Buyer shall deliver to Seller the Related Agreements, duly executed by Buyer. (iv) Seller shall deliver to Buyer: (1) the Related Agreements, duly executed by Seller and HNR; (2) a certificate, dated the Initial Closing Date, and signed by an executive officer of Seller, certifying that: (A) each of the Fundamental Representations shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) true and correct in all respects at and as of the conditions Initial Closing Date (except to the Closing extent expressly made as of an earlier date, in which case as of such date) and (B) each of the representations and warranties set forth in Section 5.1 below Article IV hereof (other than the Fundamental Representations) without giving effect to any qualifications as to materiality or such later date Material Adverse Effect or other similar qualifications contained therein, shall be true and correct at and as is mutually agreed to by of the Borrower and the Agent). On the Initial Closing Date, (iexcept to the extent expressly made as of an earlier date, in which case as of such date), except in the case of this clause (B) each Lender shall pay for such failures to be true and correct as would not have, individually or in the aggregate, a Material Adverse Effect; (3) a release in the form attached as Exhibit B hereto; and (4) a written confirmation from Vinccler that no amounts are owed by the HVDH Companies to Vinccler or any of its pro rata share Affiliates as of the Initial Closing Note Purchase Price Date, in form and substance satisfactory to Buyer. (v) Buyer and Seller shall cause the First Tranche Subject Shares to be transferred to the Borrower for Buyer by way of execution of the Notes to be issued and sold to such Lender at the Closing, by wire notarial deed of transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (shares substantially in the denominations form attached as such Lender shall have requested prior to Exhibit A hereto (the Closing) which such Lender is then purchasing, duly executed on behalf “First Tranche Deed of the Borrower and registered in the name of such Lender or its designeeTransfer”).

Initial Closing. In consideration for each applicable Lender’s payment (a) If the Escrow Agent shall (i) be holding in escrow collected funds representing Subscription Proceeds in an amount equal to the full purchase price of its pro rata share 60,000 shares of Common Stock and (ii) have received from the Company and the Managing Placement Agent, on or before the Termination Date and the Initial Closing Date, respectively, the Facsimile Notice (as defined herein) and related Confirmation (as defined herein) described in paragraph 4(b) hereof, then the Escrow Agent shall disburse the collected funds then held in the Escrow Account (less fees of the aggregate purchase price (Escrow Agent as provided herein) to the “Company and to the Managing Placement Agent, as provided herein and subject to the provisions hereof, at the Initial Closing. As used in this Agreement, the terms "Initial Closing" and "Initial Closing Note Purchase Price”Date" shall have the meanings ascribed to such terms in Section 4(g) of the Notes to Managing Placement Agent Agreement; the Initial Closing shall be purchased by scheduled as provided therein. (b) On or before the Lenders at Termination Date, the Closing Escrow Agent shall have received Facsimile Notice (as defined below), which is set forth opposite such Lender’s name in column four (4herein) from the Company and the Managing Placement Agent that all conditions precedent to the disbursement of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender Subscription Proceeds on the Initial Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) including without limitation all of the conditions to the Closing set forth in Section 5.1 below (or such later date 9 of the Managing Placement Agent Agreement) have been fully satisfied as is mutually agreed required under the Prospectus, the Managing Placement Agent Agreement, Rule 15c2-4 and/or NASD Notices to Members 84-64 and 84-7, specifically certifying that subscriptions for not less than 60,000 shares of Common Stock have been received and accepted by the Borrower and Company on or before the Agent). On Termination Date; Confirmation (as defined herein) of such Facsimile Notice shall be delivered to the Escrow Agent on or before the Initial Closing Date, dated as of the Initial Closing Date. (c) Provided that the Escrow Agent shall have (i) each Lender shall pay its pro rata share of received and be holding in escrow collected Subscription Proceeds as required under paragraph 4(a) hereof, (ii) received the Closing Note Purchase Price to Facsimile Notice (as defined herein) required under paragraph 4(b) hereof on or before the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Termination Date and (ii) received Confirmation (as defined herein) of the Borrower shall deliver to each Lender Facsimile Notice required under paragraph 4(b) hereof on or before the Notes (Initial Closing Date, the Escrow Agent shall, on the Initial Closing Date, disburse the collected funds then held in the denominations Escrow Account as such Lender shall have requested prior follows: First, to the Closing) Escrow Agent in the amount of any fees then due and payable to such Agent (which such Lender is then purchasingshall not exceed on the Initial Closing Date the aggregate earnings, duly executed if any, on behalf funds held in the Escrow Account, determined as of the Borrower business day immediately preceding such Closing Date); Second, to the Managing Placement Agent in an amount equal to the aggregate selling commissions and registered expense allowances then due and payable to the Selected Placement Agents pursuant to the Managing Placement Agent Agreement; and Third, to the Company in the name amount of any balance then remaining in the Escrow Account. (d) If any of the conditions described in paragraphs 4(a) and 4(b) hereof shall not have been fully satisfied at the close of business on the date (Termination Date or Initial Closing Date) specified herein for such Lender or compliance, the Escrow Agent shall promptly return all Subscription Proceeds directly to subscribers, with interest thereon at its designeepassbook rate for the period held in escrow, and the escrow provided for herein shall thereupon terminate.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The closing of the aggregate purchase price several purchases and sales of the Initial Securities shall take place at the offices of Weil, Gotshal & Mangxx XXX, 767 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 xx 10:00 a.m. (local time) on the date hereof, or at such other place as may be mutually agreed to by the Company and the Purchaser Representative (the “Closing Note Purchase Price”"Initial Closing"). (a) of At the, Initial Closing, the Notes Company shall take or previously shall have taken, and shall deliver or cause to be delivered to each Purchaser, the following actions and items: (i) A certificate evidencing the Preferred Stock to be purchased by the Lenders at the Closing such Purchaser registered in such Purchaser's or its nominee's name. (as defined below)ii) Payment to Clipper Capital Partners, which is set forth opposite such Lender’s name in column four (4) L.P. of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and fee in the aggregate principal amount as is set forth opposite such Lender’s name in column four of $400,000, minus all fees and expenses paid by the Company pursuant to clause (4a) of the Schedule of Lenders attached hereto. The closing Section 8.1 hereof (the “Closing”"Closing Fee"). (iii) A certificate, dated as of the Initial Closing, signed by the Secretary or Assistant Secretary of the Company certifying (A) that attached thereto is a true and complete copy of the Second Amended and Restated Articles and the amended Amended and Restated By-Laws of the Company, (B) resolutions duly adopted by the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement, the Registration Rights Agreement, the Shareholders Agreement and each other Transaction Document, the issuance and sale of the Initial Securities and the consummation of all other transactions contemplated by this Agreement and the issuance other Transaction Documents and (C) the incumbency of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time officer of the Closing Company executing this Agreement and each other Transaction Document, (iv) A registration rights agreement, in the form of Exhibit B hereto (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent"Registration Rights Agreement"). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf and delivered by the Company and the Purchasers, which Registration Rights Agreement shall be in full force and effect. (v) A shareholders agreement, in the form of Exhibit C hereto (the "Shareholders Agreement"), duly executed and delivered by the Company, the Purchasers and each of the Borrower other shareholders of the Company (collectively, the "Shareholders"); and registered all such action shall have been taken as may be necessary to elect a Board of Directors of the Company, effective upon the Initial Closing, in accordance with the Shareholders Agreement. (vi) Copies of executed second amended and restated employment agreements between the Company and each of Donaxx X. Xxxx and Jaimx X. Xxxx xx the terms described in the name of such Lender or its designee.Company Prospectus under the caption "Business - Employment Agreements", which second amended and restated

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The obligation of the aggregate Purchasers to purchase price (the “Closing Note Purchase Price”) Initial Purchased Securities, and of the Notes Company to sell the Initial Purchased Securities, are subject to the fulfillment, or the waiver by the applicable party, of each of the following conditions on or before the Initial Closing: (i) The Company will deliver to each Purchaser a stock certificate representing the Initial Purchased Securities to be sold to and purchased by the Lenders at the Closing (as defined below)such Purchaser pursuant to this Agreement, free and clear of all Liens, which is set forth opposite shall be registered in such LenderPurchaser’s name in column four the Company’s records. (4ii) Each Purchaser will pay for the Initial Purchased Securities to be sold to and purchased by such Purchaser by payment to the Company of the Schedule of Lenders attached hereto, purchase price therefor by certified or bank check payable to the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) order of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (Company or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, funds to such account as more fully set forth on the Schedule of Lenders and (ii) the Borrower Company shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested indicate prior to the Closing) which Initial Closing for such Lender is then purchasing, duly executed on behalf total number of the Borrower and registered in Initial Purchased Securities indicated opposite the name of such Lender Purchaser in the Purchaser Schedule attached hereto as Exhibit A. (iii) The Company will deliver to the Purchasers each of the following documents: (1) With respect to the Company, evidence that the Company’s Restated Articles of Organization in the form of Exhibit B attached hereto (the “Restated Charter”), has been filed with the Secretary of the Commonwealth of The Commonwealth of Massachusetts on or before the Initial Closing Date. (2) The Fourth Amendment to Registration Rights Agreement, dated as of the Initial Closing Date, duly executed by the Company and certain of its designeestockholders, in the form of Exhibit C attached hereto (the “Fourth Amendment to Registration Rights Agreement”). (3) The Third Amendment to Shareholders Agreement, dated as of the Initial Closing Date, duly executed by the Company and certain of its stockholders, in the form of Exhibit D attached hereto (the “Third Amendment to Shareholders Agreement”). (4) With respect to the Company, a certificate of its Clerk, dated as of the Initial Closing Date, certifying (A) the absence of any amendments to its charter documents (or proceedings therefor) since October 14, 2004 other than the Restated Charter, (B) the attached copy of its by-laws are true, complete and correct, (C) the attached votes of its Board of Directors and stockholders, respectively, with respect to the transactions hereby contemplated or otherwise to be effected at the Initial Closing, (D) the incumbency of its officers and directors and (E) that the Company’s representations and warranties contained herein remain true and correct on and as of the Initial Closing Date as if such representations and warranties were made on and as of the Initial Closing Date. (iv) Each of the Purchasers will deliver to the Company each of the Third Amendment to Shareholders Agreement and the Fourth Amendment to Registration Rights Agreement, duly executed by each of such Purchasers.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) consummation of the transactions contemplated by provided for in this Agreement and Section 2.09 (the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders "Initial Closing") shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxx Xxxxxx 0 Xxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXxx Xxxx 00000, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be at 10:00 a.m., Chicago Eastern time, on the date hereofon or after January 2, subject to notification of satisfaction 2008 that is three (3) business days after the fulfillment or waiverwaiver (where relevant) of the conditions to the Closing set forth in Article VIII and Article IX (other than those conditions which by their nature are to be satisfied on the Initial Closing Date), or on such other date and time as shall be agreed upon in writing by Buyer and Seller Parent. The date on which the Initial Closing actually occurs is referred to herein as the "Initial Closing Date." The Purchased C Assets and Assumed C Liabilities to be conveyed at the Initial Closing shall include all of the Purchased C Assets and Assumed C Liabilities other than those expressly contemplated as being transferred at a Subsequent Closing, as provided in Section 5.1 below (or such later date as is mutually agreed to by the Borrower 2.10 and the Agent). On the Closing Date, (i) each Lender parties hereby acknowledge and agree that no conveyance of Purchased C Assets or Assumed C Liabilities shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested occur prior to the Initial Closing. Notwithstanding anything herein to the contrary, in the event the Initial Closing occurs on or prior to January 15, 2008, the Parties shall for all purposes hereof, to the extent permitted by applicable Law, deem the Initial Closing to have occurred on, and be effective as of, January 2, 2008, and in connection therewith, the Parties shall (x) which use their commercially reasonable efforts to cause all other Persons, to the extent permitted by applicable Law to similarly deem the Initial Closing to have occurred on, and be effective as of, such Lender is then purchasingdate and (y) pursuant to and in accordance with Section 3.10, duly executed on behalf make such payments and reimbursements between them as are necessary to reflect that all benefits, revenues, expenses, costs, risks and other results in respect of the Borrower Purchased C Assets and registered in Assumed C Liabilities subject to the name Initial Closing Date (including compensation and benefits) are transferred and assumed as of such Lender or its designeethe Initial Closing Date (the results of the Transferred C Businesses relating to the Purchased C Assets and Assumed C Liabilities transferred and assumed at the Initial Closing for a period from January 2, 2008 through the Initial Closing Date are referred to as the "Interim Results").

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The purchase and sale of the aggregate purchase price Initial Closing Notes and the Initial Closing Warrants shall take place at the offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, promptly upon the satisfaction or waiver of the closing conditions set forth in Section 5.1, 5.2 and 5.4 hereto, but not later than February 27, 2009, or on such other date and at such other time as the Borrowers and Phoenix Venture Fund LLC, as Agent for the Purchasers (the “Agent”), mutually agree upon in writing (which time and place is designated as the “Initial Closing”). The date of the Initial Closing is referred to herein as the “Initial Closing Date.” At the Initial Closing, the Borrowers shall deliver to each Initial Purchaser (i) Initial Closing Notes, in an original principal amount equal to the dollar amount set forth opposite such Initial Purchaser’s name under the heading “Initial Closing Note Purchase Price”” on Schedule I hereto and (ii) Initial Closing Warrants entitling such Initial Purchaser to purchase the number of the Notes to be purchased by the Lenders at the Closing (as defined below), which is shares of Common Stock set forth opposite such LenderInitial Purchaser’s name in column four (4) under the heading “Number of the Initial Closing Warrant Shares” on Schedule of Lenders attached I hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and all against payment in the aggregate principal amount as is amounts set forth opposite such LenderInitial Purchaser’s name in column four (4) of under the Schedule of Lenders attached hereto. The closing (the heading “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Initial Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the ClosingPrice” on Schedule I hereto, by wire transfer of immediately available funds, funds to such account as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeBorrowers designate.

Initial Closing. In consideration for each applicable Lender’s payment On the Initial Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased this Agreement by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached parties hereto, the Borrower shall issue and sell Company agrees to such Lender on the Closing Date (as defined below)sell, and each applicable Lender severallyof the Purchasers, but severally and not jointly, agrees to purchase from Shares and Warrants for an aggregate purchase price of $300,000 (such purchase and sale being the Borrower “Initial Closing”). Prior to the Initial Closing, each Purchaser shall deliver to the Escrow Agent such Purchaser’s Initial Closing Subscription Amount as set forth on the Closing Date, signature page hereto executed by such Purchaser by a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, such amount to be held in a non-interest-bearing escrow account, and the Company shall, on the Initial Closing Date, deliver to each Purchaser a certificate representing the number of Shares and Warrants purchased by such Purchaser at the Initial Closing as more fully determined pursuant to Section 2.2(a). The Company and each Purchaser shall also deliver the other items set forth in Section 2.2 deliverable at the Initial Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Initial Closing shall occur at the offices of G&M or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, the Initial Closing Date shall occur on or before March 17, 2014 (such outside date, “Termination Date”). If the Schedule of Lenders Initial Closing is not held on or before the Termination Date, the Escrow Agent shall cause (i) all subscription documents executed by the Company or a Purchaser to be returned to the Company or such Purchaser, as applicable, and (ii) the Borrower shall deliver each Subscription Amount to each Lender the Notes (in the denominations as such Lender shall have requested prior be returned, without interest or deduction to the Closing) which Purchaser who delivered such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSubscription Amount.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (i) Subject to and in reliance upon the aggregate purchase price representations and warranties set forth in Section 3 below, and the satisfaction (the “Closing Note Purchase Price”or waiver) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is conditions set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached heretoSections 6 and 7 below, the Borrower Parent shall issue and sell to such Lender on the Closing Date (as defined below)each Buyer, and each applicable Lender Buyer severally, but not jointly, agrees to purchase from the Borrower Parent on the Initial Closing DateDate (as defined below), a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount of Debentures as is set forth opposite such LenderBuyer’s name in column four (43) on the Schedule of Buyers. The aggregate purchase price (the “Initial Purchase Price”) of the Schedule of Lenders attached heretoDebentures and Closing Securities to be purchased by the Buyers at the Initial Closing shall be equal to $5,250,000. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance purchase of the Notes to be issued on the Closing Date Debentures by the Borrower and the purchase thereof by the applicable Lenders Buyers shall occur at the offices of DeMint Law, PLLC, 3753 Xxxxxx Xxxxxx Xxxxxxxx LLPParkway, 000 Xxxx Xxxxxx XxxxxxXxxxx Xxxxx 000, Xxxxx 0000Xxx Xxxxx, Xxxxxxx, Xxxxxxxx Xxxxxx 00000. The date and time of the Closing (the “Initial Closing Date”) shall be 10:00 a.m., Chicago timePacific Standard Time, on the date hereof, subject to notification of satisfaction . (or waiverii) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Initial Closing Date, (i) each Lender Buyer shall pay its pro rata share of the Closing Note aggregate Initial Purchase Price to the Borrower Parent for the Notes to be issued and Debentures sold to such Lender Buyer at the Initial Closing, by wire transfer of immediately available fundsfunds in accordance with Parent’s written wire instructions (or the applicable escrow wire instructions, as more fully set forth on the Schedule of Lenders if any), and (ii) the Borrower Parent shall deliver to each Lender Buyer (A) the Notes Debentures (in the denominations as such Lender Buyer shall have requested prior to the Closing) which such Lender Buyer is then purchasing, duly executed on behalf of the Borrower Parent and registered in the name of such Lender Buyer or its designeedesignee and (B) a Class C Warrant.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”a) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement purchase and the issuance sale of the Notes U.S. Country Unit shall be held at 10:00 a.m. (New York time) on February 29, 2008; provided that (i) if the conditions set forth in Article V to the Initial Closing (excluding those conditions intended to be issued satisfied at the Initial Closing) shall not have been satisfied or waived by such date, then the Initial Closing shall be held at 10:00 a.m. (New York time) on the last Business Day of the month during which such conditions shall have been satisfied or waived, (ii) if the Initial Closing would otherwise occur on the last day of Seller’s fiscal quarter, it shall be postponed until the first Business Day of Seller’s next fiscal quarter (a “Deferred Initial Closing” and, together with a Deferred Foreign Closing, a “Deferred Closing”) and (iii) in no event shall the Initial Closing Date be a date earlier than the fifth Business Day following the last day of the Debt Marketing Period, unless otherwise agreed by the Borrower each of Seller and the purchase thereof by the applicable Lenders Purchaser. (b) The Initial Closing shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx Cravath, Swaine & Xxxxx LLP, Worldwide Plaza, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXxx Xxxx 00000, Xxxxxxxx 00000. The date and time of each other Closing shall take place at such location or at such other location as may be reasonably designated by Seller with Purchaser’s consent, which consent will not be unreasonably withheld. (c) At the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing DateInitial Closing, (i) each Lender Purchaser shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes or cause to be issued and sold paid to such Lender at the ClosingSeller, in immediately available funds by wire transfer of immediately available fundsto one or more bank accounts (designated in writing by Seller at least two Business Days prior to the Initial Closing Date), as more fully set forth on cash in U.S. dollars in an aggregate amount equal to the Schedule of Lenders Initial Closing Purchase Price, and (ii) the Borrower Purchaser shall deliver or cause to each Lender be delivered to Seller all assumption agreements and other instruments as may be required under applicable law and such other documents as Seller may reasonably request to effect the Notes assumption of the Assumed Liabilities of the U.S. Country Unit (and, if applicable, any Foreign Country Unit to be transferred at the Initial Closing, in which case the Initial Closing shall also constitute a Foreign Country Unit Closing) or to demonstrate satisfaction of the conditions and compliance with the covenants set forth in, and to carry out the purposes of, this Agreement (provided that in the case of (i) and (ii) Purchaser shall not be required to enter into any such requested document that expands or waives any of the representations, warranties, rights or obligations of the parties set forth in the Transaction Agreements). (d) At the Initial Closing, Seller shall, and shall cause the applicable Selling Company to, deliver to Purchaser (i) such appropriately executed special warranty deeds, or their equivalent in local jurisdictions (in the denominations as such Lender shall have requested prior recordable form), bills of sale, assignments, stock certificates, stock powers or stock transfer forms duly endorsed in blank, and other instruments of transfer relating to the Acquired Assets and Shares of the U.S. Country Unit (and any Foreign Country Unit to be transferred at the Initial Closing) which in form and substance required by applicable Law and reasonably satisfactory to Purchaser, and (ii) such Lender is then purchasing, duly executed on behalf other documents as Purchaser may reasonably request to demonstrate satisfaction of the Borrower conditions and registered compliance with the covenants set forth in, and to carry out the purposes of, this Agreement (provided that Seller shall not in the name case of (i) and (ii) be required to enter into any such Lender requested document that expands or its designeewaives any of the representations, warranties, rights or obligations of the parties set forth in the Transaction Agreements).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The initial closing of the aggregate sale and purchase price of the Shares under this Agreement (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) shall take place as soon as possible after the execution and delivery hereof at a time and place that is mutually convenient to the Company and the Investors (the date of the transactions contemplated by this Agreement and the issuance of the Notes Initial Closing is sometimes hereinafter referred to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (as the “Closing Date”). In lieu of convening in person for the purpose of conducting the Initial Closing, the Company and the Investors may mutually agree to effect the execution and delivery of this Agreement, the Related Agreements (as defined in Section 3.1) and any other documents required to complete the Initial Closing by means of an exchange of facsimile signatures with original copies to follow by overnight courier service. Notwithstanding anything contained herein to the contrary, the purchase price for the Initial Closing Shares allocated to Envest II LLC (“Envest”) may be paid at any time within thirty (30) days after the date hereof (assuming that the Initial Closing occurs prior to such date); provided, however, the Company shall be 10:00 a.m., Chicago time, not deliver to Envest certificates for such Initial Closing Shares until such purchase price has been paid. Envest recognizes and acknowledges that the other Investors and the Company are relying on the date hereofaforesaid covenant and agreement by Envest in connection with their decision to complete the Initial Closing hereunder. As security for the duties and obligations of Envest to acquire its Initial Closing Shares in accordance with the provisions of this Section 2.1, subject to notification Envest shall, concurrently with the Initial Closing, deposit the sum of satisfaction Two Hundred Thousand Dollars (or waiver$200,000) of (the conditions to “Envest Escrow”) into escrow with the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing DateCompany, which Envest Escrow shall (i) each Lender shall pay its pro rata share be applied on account of the purchase price due from Envest in respect of the Initial Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, Shares acquired by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Envest pursuant hereto and (ii) be forfeited to the Borrower shall deliver to each Lender the Notes (Company in the denominations as event that Envest fails to acquire the Initial Closing Shares in accordance with the provisions of this Section 2.1 and such Lender failure is not attributable to any breach by the Company of its duties and obligations hereunder, all of which shall have requested prior be set forth in a letter agreement by and between Envest and the Company that is reasonably satisfactory to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeparties thereto.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share Subject to the conditions set forth in Article 6 and Article 7 hereto, the closing of the aggregate initial purchase price of 9,025,126 Shares and the conversion of the Notes (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, on April 24, 2008, or at such other date and place as are mutually agreeable to the Company and the Buyers purchasing Shares in the Initial Closing. The date and time of the Initial Closing is hereafter referred to as the “Initial Closing Date.” On the Initial Closing Date, the Buyers purchasing Shares in the Initial Closing shall pay the Per Share Price for such Shares, for a total price of approximately $40,000,000 (the “Closing DateInitial Purchase Price”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth funds in accordance with the Company’s written instructions. Also on the Schedule of Lenders and (ii) Initial Closing Date, the Borrower Note Holders shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior surrender to the Company the original Notes in order to effect the conversion. At the Initial Closing) which such Lender is then purchasing, duly executed on behalf upon payment of the Borrower Initial Purchase Price and the surrender of the original Notes, the Company will deliver written instructions from the Company to the transfer agent for the Company’s Common Stock to issue (i) certificates representing the Shares purchased at the Initial Closing registered in the name of each Buyer purchasing such Lender Shares and to deliver such certificates to or its designeeat the direction of each such Buyer, and (ii) certificates representing the Conversion Shares registered in the name of each Note Holder and to deliver such certificates to or at the direction of each Note Holder. The Company shall not have the power to revoke or amend such transfer instructions without the written consent of such Buyers.

Initial Closing. In consideration At the Initial Closing (unless otherwise indicated), if appropriate, each Required Seller shall deliver, or cause to be delivered, the following to the Buyer, duly executed and properly acknowledged, relating to the Ownership Shares being sold, assigned or transferred at such Initial Closing: (i) Deed for each applicable Lender’s payment the NAEC Real Property, substantially in the form of its pro rata share Exhibit A(i) hereto and any owner's affidavits or similar documents reasonably required by the Title Company; (ii) Deeds for the Ownership Shares of the aggregate purchase price (interests of Each Required Seller in the “Jointly Owned Real Property being transferred at the Initial Closing Note Purchase Price”substantially in the form of Exhibit A(ii) of the Notes to be purchased hereto, and any owner's affidavits or similar documents required by the Lenders at Title Company; (iii) a Bill xx Sale, substantially in the Closing form of Exhibit B hereto; (as defined below)iv) an Asset Demarcation Agreement, which substantially in the form of Exhibit C hereto; (v) if the Undivided Interest is set forth opposite such Lender’s name in column four (4) of transferred to the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender Buyer on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a Notein the case of UI, the Owner Trustee Deed and Bill xx Sale, substantially in the form of Exhibit K hereto; (vi) an Assignment and Assumption Agreement, substantially in the form of Exhibit D hereto, in recordable form if necessary; (vii) an Interconnection Agreement, substantially in the form attached hereto as of Exhibit AE hereto, duly executed by PSNH; (viii) an Interim Services Agreement, if requested in writing by the Buyer and if agreed to by a Seller or its Affiliate who will provide the services, substantially in the form of Exhibit J hereto, which shall cover those services set forth in Schedule 2.11(a)(viii); (ix) the Release of Mortgage Indenture, in the case of CL&P and NAEC, if applicable, substantially in the form of Exhibit F hereto, and in the aggregate principal amount case of any other Required Seller, if applicable, in such other form as is set forth opposite meets the requirements of such Lender’s name in column four Seller's mortgage indenture, if any; (4x) an Easement Agreement, if the same has been executed by PSNH, NAEC and the other Participants; (xi) originals, or copies certified to the Buyer's satisfaction, of the Schedule Transferable Permits, Material Contracts, Emergency Preparedness Agreements, Intellectual Property Licenses, Other Assigned Contracts and Leases, which shall be delivered to the Buyer at the Facility; (xii) all consents, waivers or approvals necessary for the transfer at such Closing of Lenders attached hereto. The closing (the “Closing”) Ownership Shares of such Required Sellers or the consummation of the transactions contemplated by this Agreement and the issuance Related Agreements; (xiii) a certificate from an authorized officer of such Required Seller, dated the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Initial Closing Date”) shall be 10:00 a.m., Chicago timeto the effect that, on the date hereofto such officer's Knowledge, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower Sections 6.1(a), 6.1(b), 6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(i) and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.6.1

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of At the aggregate purchase price Initial Closing, the Buyer shall deliver to the Sellers: (i) an amount in cash (the “Initial Closing Note Cash Payment”) equal to (A) the Initial Closing Purchase Price”, minus (B) the amount of the Notes to be purchased by Estimated Initial Closing Net Working Capital Deficit, if any, plus (C) the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) amount of the Schedule of Lenders attached heretoEstimated Initial Closing Net Working Capital Surplus, if any, minus (D) the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing Estimated Initial Closing Other Third-Party Brand Deficit, if any, plus (E) the “Closing”) amount of the transactions contemplated by this Agreement and Estimated Initial Closing Other Third-Party Brand Surplus, if any, minus (F) the issuance amount of the Notes to be issued on Estimated Initial Closing DP Deficit, if any, plus (G) the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time amount of the Estimated Initial Closing DP Surplus, if any, minus (H) the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) amount of the conditions to Estimated Initial Closing DP COGS Adjustment Deficit, if any, plus (I) the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share amount of the Estimated Initial Closing Note Purchase Price to DP COGS Adjustment Surplus, if any, minus (J) the Borrower for amount of the Notes to be issued Estimated Initial Closing Residual Transferred Assets Deficit, if any, plus (K) the amount of the Estimated Initial Closing Residual Transferred Assets Surplus, if any, minus (L) the amount of the Estimated Initial Closing Other Assets and sold to such Lender at Liabilities Deficit, if any, plus (M) the Closingamount of the Estimated Initial Closing Other Assets and Liabilities Surplus, if any, minus (N) the Estimated Initial Closing Retained Assets Amount, plus (O) the Estimated Initial Closing Retained Liabilities Amount, by wire transfer of in immediately available funds, to an account or accounts as more fully set forth on directed by the Schedule of Lenders and Sellers, provided that the Sellers will designate such account or accounts no later than three (3) Business Days prior to the anticipated Initial Closing Date; (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingInitial Closing Xxxx of Sale, Assignment and Assumption Agreement, duly executed on behalf of by the Borrower Buyer; (iii) the other documents and registered in the name of such Lender or its designeecertificates required to be delivered pursuant to Section 7.01(b).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (a) The initial closing of the aggregate purchase price and sale of the Securities (the “Closing Note Purchase PriceInitial Closing”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender will take place on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing date hereof (the “ClosingInitial Closing Date”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000LLP, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions legal counsel to the Closing Company (“Company Counsel”), at Xxx Xxxxx Xxxxxx, Xxxxxxxxx Xxx Xxxx 00000, or remotely by exchange of electronic copies as the Company and the Initial Purchasers shall mutually agree. (b) At the Initial Closing, the Company shall deliver to each Initial Purchaser (against such Initial Purchaser’s deliveries set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent2.2(c). On the Closing Date, ): (i) each Lender shall pay its pro rata share a Note, duly executed by the Company, payable to such Initial Purchaser in the principal amount equal to the Purchase Price set forth on such Initial Purchaser’s counterpart signature page to this Agreement; and (ii) a Warrant, duly executed by the Company, issued in the name of such Initial Purchaser to purchase the number of shares of Common Stock equal to 10% of the Closing Note number of shares of Common Stock initially issuable on conversion of such Purchaser’s Note. (c) At the Initial Closing, each Initial Purchaser shall deliver to the Company (against the Company’s deliveries set forth in Section 2.2(b)): (i) the Purchase Price set forth on such Initial Purchaser’s counterpart signature page to the Borrower for the Notes to be issued and sold to such Lender at the Closingthis Agreement, by check or wire transfer of immediately available funds, as more fully set forth on funds to the Schedule of Lenders and account designated by the Company in writing for such purpose; and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingan Accredited Investor Questionnaire, completed and duly executed on behalf of by the Borrower and registered Initial Purchaser, together with the information specified therein necessary for the Company to verify that the Initial Purchaser is an “accredited investor” as defined in the name of such Lender or its designee.Regulation D.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (a) Subject to the satisfaction or waiver of the aggregate purchase price conditions set forth in Section 2.3, other than those conditions that by their nature are to be satisfied by the taking of an act or delivery of a document at the Initial Closing, the transactions referred to in this Section 2.2 (the “Closing Note Purchase PriceInitial Closing”) shall take place immediately prior to the consummation of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing Acquisition (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Initial Closing Date”) or on the date hereof (as specified below), at a location determined by PDL, or at such other date, time or place as the parties hereto shall agree in writing. (b) At the Initial Closing, the Company shall issue and deliver to PDL, 9,400,000 Preferred Shares as set forth in Annex A (the “Initial PDL Preferred Shares”) which shall be 10:00 a.m., Chicago time, on paid up in accordance with Section 2.2(d). (c) On the date hereof, subject the Company shall issue and deliver to notification of satisfaction (or waiver) of the conditions to the Closing Farah, 600,000 Preferred Shares as set forth in Annex A (the “Farah Preferred Shares”) which shall be paid up in accordance with Section 5.1 below 2.2(f). (or d) At the Initial Closing, PDL shall pay to the Company, in addition to the [***], $66,150,000, such later date as is mutually agreed to by amount being in consideration for the Borrower Initial PDL Preferred Shares, $94,000 of which shall pay up the nominal value of the Initial PDL Preferred Shares and the Agent)remainder of which shall be allocated to the share premium account of the Company. The [***] shall also be allocated as share premium account of the Company. (e) At the Initial Closing, PDL shall make a loan to the Company in an amount equal to $75,000,000. (f) On the Closing Datedate hereof, (i) each Lender Farah shall pay its pro rata share to the Company $233,833, such amount being in consideration for the Farah Preferred Shares, $6,000 of which shall pay up the nominal value of the Closing Note Purchase Price Farah Preferred Shares and the remainder of which shall be allocated to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf share premium account of the Borrower and registered in the name of such Lender or its designeeCompany.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price An initial Closing (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement purchase and the issuance sale of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders WinWin Shares shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPGodward llp, 000 Xxxx Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00000xx Xxxxx, XxxxxxxXxx Xxxxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be Xxxxxxxxxx, at 10:00 a.m., Chicago a.m. Pacific time, on the earlier to occur of (i) the 90th day following the date hereof, subject to notification of satisfaction this Agreement and (or waiverii) the date three business days following the date on which the parties have satisfied all of the conditions to the Initial Closing set forth (the “Initial Closing Date”); provided, that if all conditions to the Initial Closing that, by their terms, can be met in Section 5.1 below (or such later date as is mutually agreed to advance of the Initial Closing have not been met by the Borrower and the Agent). On the Initial Closing Date, then the Initial Closing shall only occur, if at all, on such date that is chosen by PBT; and provided further, that the Initial Closing shall occur, if at all, on or prior to September 30, 2006. At the Initial Closing, PBT shall purchase, and WinWin shall issue and sell, against delivery of payment therefor, a number of WinWin Shares (ithe “Initial Closing WinWin Shares”) each Lender shall pay its pro rata share such that, following the issuance of the Initial Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the ClosingWinWin Shares, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf PBT will hold 19% of the Borrower outstanding capital stock of WinWin on an as-converted-to-common basis, and WinWin shall authorize its transfer agent to issue to PBT a certificate registered in the name of such Lender or its designeePBT, representing the Initial Closing WinWin Shares and bearing the legend set forth in Section 4(x)(vi). The purchase price for the Initial Closing WinWin Shares will be paid by PBT’s delivery to WinWin at the Initial Closing of (i) that certain original promissory note issued by WinWin to PBT and dated as of September 30, 2005 and with a principal amount of $2.5 million (the “Note”), all principal and accrued interest on which shall be canceled in exchange for a number of Initial Closing WinWin Shares equal to the quotient obtained by dividing the principal and accrued interest under the Note by the Purchase Price and, (ii) a number of fully paid and nonassessable newly issued shares of PBT Series C Preferred Stock (the “Initial Closing PBT Shares”), each with a deemed value of $5.00, which shares will have the rights, preferences and privileges as set forth in PBT’s Amended and Restated Certificate of Incorporation as in effect as of the date of this Agreement (the “PBT Charter”), that, when exchanged for WinWin Shares, will be sufficient for PBT to hold 19% of the outstanding capital stock of WinWin on an as-converted-to-common basis as of immediately following the Initial Closing. In advance of the Initial Closing the PBT Board of Directors shall have authorized the issuance and sale to WinWin of the Initial Closing PBT Shares, and shall have reserved a sufficient number of shares of the common stock of PBT (the “PBT Common Stock”) for issuance upon the conversion of the Initial Closing PBT Shares.

Initial Closing. In consideration At the Initial Closing (unless otherwise indicated), if appropriate, each Required Seller shall deliver, or cause to be delivered, the following to the Buyer, duly executed and properly acknowledged, relating to the Ownership Shares being sold, assigned or transferred at such Initial Closing: (i) a Deed for each applicable Lender’s payment the NAEC Real Property, substantially in the form of its pro rata share Exhibit A(i) hereto and any owner's affidavits or similar documents reasonably required by the Title Company; (ii) Deeds for the Ownership Shares of the aggregate purchase price (interests of each Required Seller in the “Jointly Owned Real Property being transferred at the Initial Closing Note Purchase Price”substantially in the form of Exhibit A(ii) of the Notes to be purchased hereto, and any owner's affidavits or similar documents required by the Lenders at Title Company; (iii) a Bill of Sale, substantially in the Closing form of Exhibit B herexx; (as defined below)iv) an Asset Demarcation Agreement, which substantially in the form of Exhibit C hereto; (v) if the Undivided Interest is set forth opposite such Lender’s name in column four (4) of transferred to the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender Buyer on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a Notein the case of UI, the Owner Trustee Deed and Bill of Sale, substantially in the form of Exhibit K hereto; (vi) an Assignment and Assumption Agreement, substantially in the form of Exhibit D hereto, in recordable form if necessary; (vii) an Interconnection Agreement, substantially in the form attached hereto as of Exhibit AE hereto, duly executed by PSNH; (viii) an Interim Services Agreement, if requested in writing by the Buyer and if agreed to by a Seller or its Affiliate who will provide the services, substantially in the form of Exhibit J hereto, which shall cover those services set forth in Schedule 2.11(a)(viii); (ix) the Release of Mortgage Indenture, in the case of CL&P and NAEC, if applicable, substantially in the form of Exhibit F hereto, and in the aggregate principal amount case of any other Required Seller, if applicable, in such other form as is set forth opposite meets the requirements of such Lender’s name in column four Seller's mortgage indenture, if any; (4x) an Easement Agreement, if the same has been executed by PSNH, NAEC and the other Participants; (xi) originals, or copies certified to the Buyer's satisfaction, of the Schedule Transferable Permits, Material Contracts, Emergency Preparedness Agreements, Intellectual Property Licenses, Other Assigned Contracts and Leases, which shall be delivered to the Buyer at the Facility; (xii) all consents, waivers or approvals necessary for the transfer at such Closing of Lenders attached hereto. The closing (the “Closing”) Ownership Shares of such Required Sellers or the consummation of the transactions contemplated by this Agreement and the issuance Related Agreements; (xiii) a certificate from an authorized officer of such Required Seller, dated the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Initial Closing Date”) shall be 10:00 a.m., Chicago timeto the effect that, on the date hereofto such officer's Knowledge, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower Sections 6.1(a), 6.1(b), 6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(i) and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.6.1

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The closing of the aggregate sale and purchase price of the Shares under this Agreement (the “Closing Note Purchase PriceInitial Closing”) shall take place on the date hereof remotely via the exchange of documents and signatures, or at such other time or place as the Notes Company and Purchasers may mutually agree (such date is hereinafter referred to as the “Initial Closing Date”). At the Initial Closing, subject to the terms and conditions hereof, the Company will deliver to each Purchaser a certificate representing the number of Shares to be purchased by the Lenders at the Initial Closing (by such Purchaser as defined below), which is set forth opposite such LenderPurchaser’s name in column four (4) on Schedule A, against payment of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (purchase price therefor as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such LenderPurchaser’s name in column four (4) on Schedule A by check, wire transfer made payable to the order of the Schedule Company, cancellation or conversion of Lenders attached heretoindebtedness or any combination of the foregoing. The closing Company and NuVasive, Inc. (the “ClosingNuVasive”) ), acknowledge and agree that as of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject NuVasive is a holder of two convertible promissory notes (the “Notes”) issued pursuant to notification that certain Note Purchase Agreement, dated as of satisfaction (or waiver) April 17, 2014, by and between the Company and NuVasive, and that certain Second Note Purchase Agreement, dated as of October 15, 2014, by and between the conditions to the Closing set forth in Section 5.1 below (or Company and NuVasive, respectively. Each note is hereby amended such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, that (i) the Initial Closing shall constitute a Qualified Financing (as defined in each Lender shall pay its pro rata share Note), and a portion of the Closing Note Purchase Price to the Borrower purchase price payable by NuVasive for the Notes Shares issued to be issued and sold to such Lender NuVasive at the Closing, Initial Closing shall be paid by wire transfer conversion of immediately available funds, the outstanding principal and interest amounts owed by the Company as more fully of the Initial Closing under such Notes into such number of Shares as set forth on the applicable portion of Schedule of Lenders A, whereupon the Notes shall be satisfied in full and cancelled in their entirety, (ii) the Borrower entire outstanding principal balance and any unpaid accrued interest on each Note that shall deliver be converted into Equity Securities (as defined in each Note) in the event of a Qualified Financing shall be deemed to each Lender equal the outstanding principal balance and any unpaid accrued interest on such Note as of January 31, 2015, (iii) upon request of NuVasive to the Company and subject to the occurrence of the Initial Closing, the Company shall pay in cash to NuVasive any and all interest that would accrue on the Notes (in between January 31, 2015, and the denominations as such Lender shall have requested prior to Initial Closing notwithstanding the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeforegoing Section 2.1(ii).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The purchase and sale of the aggregate purchase price Series A-4 First Tranche Notes and the Warrants shall take place at the offices of Thelen Reid & Priest LXX, 000 Xxxrd Avenue, New York, New York 10022, promptly upon the satisfxxxxxx xx xxxxxx xx xxx xxxxxxx xxxxxxxxxx set forth in Section 5.1, 5.2 and 5.4 hereto, but not later than December 10, 2004, or on such other date and at such other time as the Company and Additional Purchasers hereto mutually agree upon in writing (which time and place are designated as the “Closing Note Purchase Price”) "Initial Closing"). The date of the Notes Initial Closing is referred to be purchased by herein as the Lenders at "Initial Closing Date." At the Closing Initial Closing, the Company shall deliver to each Additional Purchaser (as defined below)i) Series A-4 First Tranche Notes, which is in an original principal amount equal to the dollar amount set forth opposite such Lender’s Additional Purchaser's name in column four under the heading "Series A-4 First Tranche Note Purchase Price" on Schedule III hereto and (4ii) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to Warrants entitling such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees Additional Purchaser to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is number of shares of Common Stock set forth opposite such Lender’s Additional Purchaser's name under the heading "Number of Warrant Shares" on Schedule III hereto, all against payment in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing amounts set forth in Section 5.1 below (or opposite such later date as is mutually agreed to by Additional Purchaser's name under the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing heading "Series A-4 First Tranche Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the ClosingPrice" on Schedule III hereto, by wire transfer of immediately available fundsfunds to such account as the Company designates. The Initial Closing shall not occur, as more fully and the Company shall have no obligation to make such deliveries, unless the Additional Purchasers purchase and pay for the aggregate number of Series A-4 First Tranche Notes and the Warrants set forth on the Schedule of Lenders and (ii) the Borrower III hereto. The Company shall deliver to each Lender the Notes (in the denominations pay any documentary stamp or similar issue or transfer taxes due as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf a result of the Borrower issuance and registered in sale of the name of such Lender or its designeeSeries A-3 Purchased Shares, Series A-4 First Tranche Notes and the Warrants.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The initial closing of the aggregate sale and purchase price of Purchased Units and the redemption of the Redeemed Units (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxxx LLP, 000 0 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, Xxxxxxx, Xxxxxxxx Xxx Xxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (at 10:00 a.m., New York time, or waiver) of at such other date and time as may be agreed upon between the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower Purchaser and the AgentCompany (such date and time being called the “Initial Closing Date”). On The Initial Closing and any Subsequent Closing may take place by .pdf or facsimile signatures with originally executed documents to follow by overnight delivery. At the Initial Closing Dateor any Subsequent Closing, the Company shall (i) each Lender shall pay its pro rata share issue the appropriate number of Purchased Units to Purchaser and register the Purchaser as the owner of such Purchased Units in the books and records of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Company and (ii) redeem the Borrower appropriate number of Redeemed Units from Mesa and thereafter register Mesa as the owner of the appropriate number of Units of the Company in the books and records of the Company. As payment in full for the Purchased Units on the Initial Closing Date or any Subsequent Closing Date, the Purchaser shall deliver to each Lender the Notes (in Purchase Price for the denominations as such Lender shall have requested prior applicable number of Purchased Units to the Closing) which such Lender is then purchasingCompany by wire transfer pursuant to wire instructions provided by the Company to the Purchaser in writing. As payment in full for the appropriate portion of Redeemed Units on the Initial Closing Date or any Subsequent Closing Date, duly executed on behalf the Company shall distribute the Redemption Price by wire transfer to wire instructions provided by Mesa to the Company in writing; provided that all actual and projected transaction costs to be paid by the Company to Purchaser pursuant to Section 7.1 shall be withheld from the portion of the Borrower and registered in Redemption Price due at the name of such Lender or its designeeInitial Closing.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share 2.1 The completion of the aggregate purchase price and sale of the Initial Shares and Initial Warrants (the “Initial Closing”) shall occur on a date mutually agreed by the Investor, the Company and the Placement Agent (the “Initial Closing Note Purchase PriceDate”), which date shall not be later than May 15, 2006 (the “Initial Outside Date”). At the Initial Closing, the Company shall deliver to the Investor one or more certificates representing the number of Initial Shares and Initial Warrants, respectively, set forth in paragraph 2(a) of the Notes Securities Purchase Agreement, each such certificate to be purchased by registered in the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached heretoInvestor or, the Borrower shall issue and sell to such Lender if so indicated on the Closing Date (as defined below)Certificate Questionnaire, and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, substantially in substantially the form attached hereto as Exhibit AB, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of a nominee designated by the Investor. In exchange for the delivery of the Schedule of Lenders attached hereto. The closing (certificates representing such Initial Shares and Initial Warrants, the “Closing”) of Investor shall deliver the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Initial Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, Company by wire transfer of immediately available fundsfunds pursuant to the Company’s written instructions. 2.2 The Company’s obligation to issue and sell the Initial Shares and Initial Warrants to the Investor shall be subject to the following conditions, as any one or more fully set forth of which may be waived by the Company: (a) prior receipt by the Company of an executed copy of this Agreement; (b) the accuracy in all material respects when made and on the Schedule Initial Closing Date of Lenders the representations and (ii) warranties made by the Borrower shall deliver Investor in this Agreement and the fulfillment of the obligations of the Investor to each Lender the Notes (in the denominations as such Lender shall have requested be fulfilled by it under this Agreement on or prior to the ClosingInitial Closing in all material respects; (c) which such Lender is then purchasing, duly executed on behalf the execution and delivery by the Investor of the Borrower Registration Rights Agreement; (d) receipt of the Initial Purchase Price; (e) the execution and registered delivery by the Investor of a cross receipt, substantially in the name form attached hereto as Exhibit H (the “Initial Cross Receipt”), evidencing receipt of the Initial Shares and Initial Warrants; (f) the execution and delivery by the Investor of the Voting Agreement; and (g) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into the Agreements or to consummate the transactions contemplated hereby and thereby. 2.3 The Investor’s obligation to purchase the Initial Shares and Initial Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) the delivery to the Investor of a legal opinion, dated the Initial Closing Date, from counsel to the Company, substantially in the form attached hereto as Exhibit G; (b) the accuracy in all material respects of the representations and warranties made by the Company in this Agreement on the date hereof and, if different, on the Initial Closing Date and the fulfillment of the obligations of the Company to be fulfilled by it under this Agreement on or prior to the Initial Closing in all material respects; (c) the execution and delivery by the Company of the Registration Rights Agreement, (d) the execution and delivery by the Company of the Voting Agreement; (e) the fulfillment of the obligations of the Company to be fulfilled by it under this Agreement on or prior to the Initial Closing; (f) the execution and delivery by the Company of the Initial Cross Receipt evidencing receipt of the Initial Purchase Price; (g) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into such Agreements or to consummate the transactions contemplated hereby and thereby; (h) if permitted under the Nasdaq rules, the appointment by the Company to the Company’s Board of the Directors (the “Board”) of two individuals designated by the Investor, who are willing and able to serve as directors and are reasonably acceptable to the Company, and the appointment by the Company of one of such Lender individuals to the Compensation Committee of the Board, to serve from and after the Initial Closing Date until a successor is duly elected and qualified; (i) if the Nasdaq rules do not permit the appointment to the Board of two individuals designated by the investor at the Initial Closing, the appointment by the Company to the Board of one individual designated by the Investor, who is willing and able to serve as a director and is reasonably acceptable to the Company, and the appointment by the Company of such individual to the Compensation Committee of the Board, to serve from and after the Initial Closing Date until a successor is duly elected and qualified; and the appointment by the Investor of an observer to the Board, who shall have the right to receive notice of and attend all meetings of the Board until such time as the observer may be replaced by a second individual designated by the Investor to serve as a director of the Company; (j) the sale by Dxxxx X. Xxxxxx of 2,712,864 shares of Common Stock to the Investor in a private sale to occur simultaneously with the Initial Closing (the “First Humble Transaction”); and (k) the delivery to the Investor by the Secretary or its designeeAssistant Secretary of the Company of a certificate stating that the conditions specified in this paragraph have been fulfilled. 2.4 In the event that the Initial Closing does not occur on or before the Initial Outside Date as a result of the Company’s failure to satisfy any of the conditions set forth above (and such condition has not been waived by the Investor), the Company shall return any and all funds paid hereunder to the Investor no later than one (1) Business Day following the Initial Outside Date and the Investor shall have no further obligations hereunder. For purposes of this Agreement, “Business Day” shall mean any day other than a Saturday, Sunday or other day on which the New York Stock Exchange or commercial banks located in Boston, Massachusetts are permitted or required by law to close.

Initial Closing. In consideration for The obligation of each applicable Lender’s payment of Buyer hereunder to purchase its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Initial Notes to be purchased by the Lenders and Warrants at the Initial Closing (as defined below)is subject to the satisfaction, which is set forth opposite such Lender’s name in column four (4) of at or before the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents to which it is a Note, party and the Company shall have duly executed and delivered to such Buyer Initial Notes (in substantially the form attached hereto as Exhibit A, and in the aggregate such original principal amount as is set forth opposite across from such LenderBuyer’s name in column four (3) on the Schedule of Buyers (Initial Closing)) and the related Warrants set forth across from such Buyer’s name in column (4) of on the Schedule of Lenders attached hereto. Buyers (Initial Closing), in each case, being purchased by such Buyer at the Initial Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Cozen X’Xxxxxx, the Company’s counsel, dated as of the Initial Closing Date, in the form previously provided to the Company. (iii) The closing Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to such Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the “Closing”formation and good standing of the Company and each of its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company’s and each Subsidiary’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and each Subsidiary conducts business and is required to so qualify, as of a date within ten (10) days of the Initial Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the Company’s jurisdiction of incorporation within ten (10) days of the Initial Closing Date. (vii) Each Subsidiary shall have delivered to such Buyer a certified copy of its certificate of incorporation or formation as certified by the Secretary of State (or comparable office) of such Subsidiary’s jurisdiction of incorporation or formation within ten (10) days of the Initial Closing Date. (viii) The Company and each Subsidiary shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary of the Company and each Subsidiary and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each Subsidiary’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Articles of Incorporation of the Company and the organizational documents of each Subsidiary and (iii) the Bylaws of the Company and the bylaws of each Subsidiary, each as in effect at the Initial Closing. (ix) Each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer. (x) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding on the Initial Closing Date immediately prior to the Initial Closing. (xi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the SEC Documents, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market. (xii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market. (xiii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents. (xiv) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect. (xv) The Security Documents shall have been amended and restated in form and substance acceptable to each of the Buyers (in their sole discretion) so that the Notes are secured by a first priority perfected security interest in all of the assets of the Company and its Subsidiaries and each Subsidiary is a guarantor thereof. (xvi) The Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender Buyer or its designeecounsel may reasonably request.

Initial Closing. In consideration for each applicable Lender’s payment (i) Subject to the terms and conditions of its pro rata share of this Agreement, at the aggregate purchase price Initial Closing, (A) the “Closing Note Purchase Price”Property Assets associated with the Properties and Partnership Interests specified in Section 2.01(b) of the Notes to THCI Disclosure Schedule and the Property Assets associated with the Properties and Partnership Interests, if any, specified in the Initial Closing Date Notice shall be purchased by the Lenders at the Closing (as defined below)Acquirors for an aggregate purchase price, which is set forth opposite such Lender’s name payable in column four (4) of the Schedule of Lenders attached heretocash, the Borrower shall issue and sell equal to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite Adjusted Allocated Purchase Price for such Lender’s name Properties and Partnership Interests and (B) the Management Company Shares shall be purchased by the Acquirors for an aggregate purchase price, payable in column four (4) cash, equal to the Allocated Purchase Price therefor. Subject to the terms and conditions of the Schedule of Lenders attached hereto. The closing (the “Closing”) of this Agreement, the transactions contemplated by this Agreement and Section 2.01(b) shall take place at a closing (the issuance of the Notes "INITIAL CLOSING") to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur held at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPShearman & Sterling, 000 Xxxx Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXxx Xxxx at 10:00 a.m., Xxxxxxxx 00000New York City time, on a Closing Date specified in the Initial Closing Date Notice, which shall not be less than 15 Business Days or more than 30 Business Days following delivery of the Initial Closing Date Notice to the Acquirors but not later than August 31, 1998 or at such other place or at such other time or on such other date as THCI and the Acquirors may mutually agree upon in writing (the day on which the Initial Closing takes place being the "INITIAL CLOSING DATE"). (ii) In the event that, as a result of the operation of Section 5.09, THCI does not transfer to the Acquirors the Bridgewater Property at the Initial Closing, THCI shall have the right to elect to deliver or assign to the Acquirors, and the Acquirors shall accept, at the Initial Closing, either (A) the Partnership Interests in the Bridgewater Partnership held by Command Properties Corporation and THCI in Midway Associates (the "BRIDGEWATER PARTNERSHIP INTERESTS") in consideration of the Adjusted Allocated Purchase Price therefor payable at the Initial Closing, or (B) a binding purchase and sale agreement with the Bridgewater Partnership (that is not subject to a right of first refusal) pursuant to which the Bridgewater Property shall be sold to the Acquirors on or before December 31, 1998 for a purchase price in an amount not to exceed the Adjusted Allocated Purchase Price for the Bridgewater Property (unless THCI agrees to pay any amount in excess thereof), in which case THCI shall not be required to convey the Bridgewater Partnership Interests to the Acquirors, and the Acquirors shall not be obligated to pay any separate consideration to THCI for the Bridgewater Property other than pursuant to such purchase and sale agreement. If THCI delivers the Bridgewater Partnership Interests to the Acquirors, (W) from and after the Initial Closing, to the extent permitted by the terms of the partnership agreement governing, and any other agreements relating to, the Bridgewater Partnership, THCI agrees to act in such manner as the Acquirors shall direct in exercising any management and voting rights held by EWH in its capacity as a general partner in the Bridgewater Partnership; PROVIDED that the Acquirors agree fully to indemnify THCI for any loss, cost or damage incurred by THCI as a result thereof (provided that in no event shall the Acquirors be liable for consequential damages pursuant to such indemnity), (X) at any time prior to the expiration of the six-month period after the earliest of (1) the twenty-first anniversary of the ceremonial opening of the Bridgewater Property, (2) the date on which the Acquirors or any of their respective Affiliates acquires at least an additional 26% interest in the Bridgewater Partnership or (3) receipt of the consent of the Other Partner to the transfer of such interest to the Acquirors without being subjected to the right of first refusal (which consent the Acquirors agree to use commercially good faith efforts to obtain, but without obligation to expend funds or to commence legal proceedings)(the earliest of such dates being the "Option Expiration Date"), the Acquirors shall have the option, subject to Section 5.10, to require THCI to transfer to the Acquirors, and THCI shall cause EWH to transfer, and, at any time subsequent to the Option Expiration Date, THCI shall have the right, subject to Section 5.10, to transfer to the Acquirors, and the Acquirors shall acquire, EWH's Partnership Interest in the Bridgewater Partnership in consideration of the Adjusted Allocated Purchase Price therefor, (Y) until the Option Expiration Date, THCI shall not sell, assign, pledge or otherwise transfer EWH's Partnership Interest without the consent of the Acquirors, and (Z) until such time as THCI transfers EWH's Partnership Interest to the Acquirors, THCI shall have the right to receive and retain all distributions and other economic entitlements payable in respect thereto. The date agreements set forth above shall be set forth in an agreement reasonably acceptable to THCI and the Acquirors, which shall be executed by the parties at the time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Initial Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share 2.1 The completion of the aggregate purchase price and sale of the Initial Shares and Initial Warrants (the “Initial Closing”) shall occur on a date mutually agreed by the Investor, the Company and the Placement Agent (the “Initial Closing Note Purchase PriceDate”), which date shall not be later than May 15, 2006 (the “Initial Outside Date”). At the Initial Closing, the Company shall deliver to the Investor one or more certificates representing the number of Initial Shares and Initial Warrants, respectively, set forth in paragraph 2(a) of the Notes Securities Purchase Agreement, each such certificate to be purchased by registered in the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached heretoInvestor or, the Borrower shall issue and sell to such Lender if so indicated on the Closing Date (as defined below)Certificate Questionnaire, and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, substantially in substantially the form attached hereto as Exhibit AB, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of a nominee designated by the Investor. In exchange for the delivery of the Schedule of Lenders attached hereto. The closing (certificates representing such Initial Shares and Initial Warrants, the “Closing”) of Investor shall deliver the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Initial Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, Company by wire transfer of immediately available fundsfunds pursuant to the Company’s written instructions. 2.2 The Company’s obligation to issue and sell the Initial Shares and Initial Warrants to the Investor shall be subject to the following conditions, as any one or more fully set forth of which may be waived by the Company: (a) prior receipt by the Company of an executed copy of this Agreement; (b) the accuracy in all material respects when made and on the Schedule Initial Closing Date of Lenders the representations and (ii) warranties made by the Borrower shall deliver Investor in this Agreement and the fulfillment of the obligations of the Investor to each Lender the Notes (in the denominations as such Lender shall have requested be fulfilled by it under this Agreement on or prior to the ClosingInitial Closing in all material respects; (c) which such Lender is then purchasing, duly executed on behalf the execution and delivery by the Investor of the Borrower Registration Rights Agreement; (d) receipt of the Initial Purchase Price; (e) the execution and registered delivery by the Investor of a cross receipt, substantially in the name form attached hereto as Exhibit H (the “Initial Cross Receipt”), evidencing receipt of the Initial Shares and Initial Warrants; (f) the execution and delivery by the Investor of the Voting Agreement; and (g) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into the Agreements or to consummate the transactions contemplated hereby and thereby. 2.3 The Investor’s obligation to purchase the Initial Shares and Initial Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) the delivery to the Investor of a legal opinion, dated the Initial Closing Date, from counsel to the Company, substantially in the form attached hereto as Exhibit G; (b) the accuracy in all material respects of the representations and warranties made by the Company in this Agreement on the date hereof and, if different, on the Initial Closing Date and the fulfillment of the obligations of the Company to be fulfilled by it under this Agreement on or prior to the Initial Closing in all material respects; (c) the execution and delivery by the Company of the Registration Rights Agreement, (d) the execution and delivery by the Company of the Voting Agreement; (e) the fulfillment of the obligations of the Company to be fulfilled by it under this Agreement on or prior to the Initial Closing; (f) the execution and delivery by the Company of the Initial Cross Receipt evidencing receipt of the Initial Purchase Price; (g) the absence of any order, writ, injunction, judgment or decree that questions the validity of the Agreements or the right of the Company or the Investor to enter into such Agreements or to consummate the transactions contemplated hereby and thereby; (h) if permitted under the Nasdaq rules, the appointment by the Company to the Company’s Board of the Directors (the “Board”) of two individuals designated by the Investor, who are willing and able to serve as directors and are reasonably acceptable to the Company, and the appointment by the Company of one of such Lender individuals to the Compensation Committee of the Board, to serve from and after the Initial Closing Date until a successor is duly elected and qualified; (i) if the Nasdaq rules do not permit the appointment to the Board of two individuals designated by the investor at the Initial Closing, the appointment by the Company to the Board of one individual designated by the Investor, who is willing and able to serve as a director and is reasonably acceptable to the Company, and the appointment by the Company of such individual to the Compensation Committee of the Board, to serve from and after the Initial Closing Date until a successor is duly elected and qualified; and the appointment by the Investor of an observer to the Board, who shall have the right to receive notice of and attend all meetings of the Board until such time as the observer may be replaced by a second individual designated by the Investor to serve as a director of the Company; (j) the sale by Xxxxx X. Xxxxxx of 2,712,864 shares of Common Stock to the Investor in a private sale to occur simultaneously with the Initial Closing (the “First Humble Transaction”); and (k) the delivery to the Investor by the Secretary or its designeeAssistant Secretary of the Company of a certificate stating that the conditions specified in this paragraph have been fulfilled. 2.4 In the event that the Initial Closing does not occur on or before the Initial Outside Date as a result of the Company’s failure to satisfy any of the conditions set forth above (and such condition has not been waived by the Investor), the Company shall return any and all funds paid hereunder to the Investor no later than one (1) Business Day following the Initial Outside Date and the Investor shall have no further obligations hereunder. For purposes of this Agreement, “Business Day” shall mean any day other than a Saturday, Sunday or other day on which the New York Stock Exchange or commercial banks located in Boston, Massachusetts are permitted or required by law to close.

Initial Closing. In consideration for each applicable Lender’s payment Unless this Agreement shall have been terminated pursuant to Article X and subject to the satisfaction or waiver of its pro rata share all of the aggregate purchase price applicable conditions contained in Sections 9.2, 9.3, and 9.4 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions) and subject to the provisions set forth in Section 9.5, the initial closing of the Transactions with respect to the Purchased Commercial Loans (the “Closing Note Purchase PriceInitial Debt Closing”) and the initial closing of the Notes Transactions with respect to the Equity Assets (the “Initial Equity Closing”, and together with the Initial Debt Closing, the “Initial Closings” and, as the context may require, each an “Applicable Initial Closing” and the Transactions that close at the Initial Closings, the “Initial Transactions”) will each take place at the New York City office of Xxxxx Lovells US LLP, unless another time, date or place is agreed by the Seller Parties and the Purchaser Parties, as follows: (a) The Initial Debt Closing shall occur on May 20, 2015 (the “Initial Debt Closing Date”); so long as the Purchaser Parties shall have the notified the Seller Parties of applicable Purchased Commercial Loans to be Transferred at such Initial Debt Closing no later than ten (10) Business Days prior to such Initial Debt Closing Date; provided that the Xxxxx Designee shall have the right, by written notice to the Seller Parties delivered no later than May 10, 2015, to elect to defer the Initial Debt Closing with respect to Purchased Commercial Loans to be purchased by the Lenders at Xxxxx Designees to June 18, 2015 (the “Xxxxx Initial Closing (as defined belowDate”), which is set forth opposite such Lender’s name in column four (4) of . If the Schedule of Lenders attached hereto, Xxxxx Designee elects to defer to the Borrower shall issue and sell to such Lender on the Initial Debt Closing Date with respect to the Purchased Commercial Loans to be purchased by it, then (as defined below)a) the Initial Debt Closing for the purchase by the Xxxxx Designees of such Purchased Commercial Loans shall be June 18, 2015 and each applicable Lender severallyall references in this Agreement to Initial Closing, but not jointlyInitial Debt Closing, agrees to purchase from the Borrower on the Initial Debt Closing Date and Applicable Initial Closing Date, a Noteincluding, without limitation, all references in substantially Article X, shall be deemed to include the form attached hereto as Exhibit AInitial Debt Closing, the Initial Debt Closing Date and the Applicable Initial Closing Date of both the Purchaser Parties and the Xxxxx Designee, and in (b) the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) Outside Debt Date for the purchase of Commercial Property Loans by the Schedule of Lenders attached hereto. The closing Xxxxx Designees shall be October 1, 2015 (the “ClosingXxxxx Designee Outside Date”) of the transactions contemplated by and all references in this Agreement to the Outside Debt Date shall be deemed to include both the Outside Debt Date for the Purchaser Parties and the issuance of the Notes to be issued on the Xxxxx Designee Outside Date. (b) The Initial Equity Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPon July 15, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing 2015 (the “Initial Equity Closing Date”) ). For purposes of this Agreement the “Applicable Initial Closing Date” shall be 10:00 a.m.mean the Initial Equity Closing Date, Chicago time, on the date hereof, subject to notification of satisfaction (Xxxxx Initial Closing Date or waiver) the Initial Debt Closing Date as the context requires. In the event that the Applicable Initial Closing shall not have occurred as of the Applicable Initial Closing Date and the only conditions to the Closing obligations of the Parties to effect the Transactions that have not been satisfied as of such date are the conditions set forth in Section 5.1 below 9.2(b), then the Seller Parties, on the one hand, or the Purchaser Parties, on the other hand, shall be entitled, by notice to the other no later than 11:59 p.m. (or such later date as is mutually agreed to by Eastern Time) on the Borrower and the Agent). On the Applicable Initial Closing Date, to extend the Applicable Initial Closing Date by an additional number of days not to exceed thirty (i30) days, in each Lender shall pay its pro rata share of the instance. The Applicable Initial Closing Note Purchase Price Date may be extended pursuant to the Borrower for immediately preceding sentence up to the Notes to be issued and sold to such Lender at Outside Debt Date or the Closing, by wire transfer of immediately available fundsOutside Equity Date, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeapplicable.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of i. At the aggregate purchase price (Initial Closing, upon the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is terms set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached heretoherein, the Borrower shall Company hereby agrees to issue and sell to such Lender on the Closing Date (as defined below)each Purchaser, and each applicable Lender severally, but not jointly, Purchaser agrees to purchase from the Borrower on Company, severally and not jointly, the Closing Date, a Note, in substantially number of shares of Common Stock and the form attached hereto as Exhibit A, and in the aggregate principal amount as is number of shares of Series X Preferred Stock set forth opposite such LenderPurchaser’s name in column four (4) on Exhibit A hereto, at a purchase price equal to the Initial Common Closing Price per share of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement Common Stock and the issuance Initial Preferred Closing Price per share of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur Series X Preferred Stock. In addition, at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPInitial Closing, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender Major Purchaser shall pay its pro rata share portion of the Closing Note Purchase Price Option Fee as set forth opposite such Major Purchaser’s name on Exhibit A hereto. ii. At the Initial Closing, upon the terms set forth herein, the Company hereby agrees to issue and sell to each Major Purchaser, and each Major Purchaser agrees to purchase from the Company, severally and not jointly, an Initial Warrant exercisable for a number of Warrant Shares set forth opposite such Major Purchaser’s name on Exhibit A hereto, at a purchase price equal to $0.125 per Warrant Share. iii. At the Initial Closing, each Purchaser shall deliver to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by Company via wire transfer of or certified check immediately available funds, as more fully funds equal to its aggregate purchase price set forth opposite such Purchaser’s name on Exhibit A hereto and the Schedule of Lenders and (ii) the Borrower Company shall deliver to each Lender Purchaser its respective Securities and the Notes other items set forth in Section 2.2 of this Agreement deliverable at the Initial Closing on the Initial Closing Date. The Initial Closing shall occur at 10:00 a.m. (in Pacific Time) on the denominations second Trading Day after the Effective Date or such other time and location as such Lender the parties shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeemutually agree.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share Subject to the conditions set forth in Article 6 and Article 7 hereto, the closing of the aggregate initial purchase price of 5,025,126 Shares and the conversion of the Notes (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx Barack Xxxxxxxxxx Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, on April 24, 2008, or at such other date and place as are mutually agreeable to the Company and the Buyers purchasing Shares in the Initial Closing. The date and time of the Initial Closing is hereafter referred to as the “Initial Closing Date.” On the Initial Closing Date, the Buyers purchasing Shares in the Initial Closing shall pay the Per Share Price for such Shares, for a total price of approximately $40,000,000 (the “Closing DateInitial Purchase Price”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth funds in accordance with the Company’s written instructions. Also on the Schedule of Lenders and (ii) Initial Closing Date, the Borrower Note Holders shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior surrender to the Company the original Notes in order to effect the conversion. At the Initial Closing) which such Lender is then purchasing, duly executed on behalf upon payment of the Borrower Initial Purchase Price and the surrender of the original Notes, the Company will deliver written instructions from the Company to the transfer agent for the Company’s Common Stock to issue (i) certificates representing the Shares purchased at the Initial Closing registered in the name of each Buyer purchasing such Lender Shares and to deliver such certificates to or its designeeat the direction of each such Buyer, and (ii) certificates representing the Conversion Shares registered in the name of each Note Holder and to deliver such certificates to or at the direction of each Note Holder. The Company shall not have the power to revoke or amend such transfer instructions without the written consent of such Buyers.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of On or before the aggregate date which is twenty-one (21) business days from the date that the last party to execute this Agreement has executed this Agreement, the Purchaser shall purchase price from the Company and the Company shall sell to the Purchaser Twenty-Four Million (24,000,000) Common Shares (the “Initial Purchased Shares”) in exchange for a purchase price of One Million Two Hundred Thousand Dollars ($1,200,000) (the “Initial Purchaser Price”). The closing of the purchase and sale of the Initial Purchased Shares (the “Initial Closing”) shall take place on such date as is mutually agreeable to the parties provided however the date shall be no later than the date that is twenty-one (21) business days from the date that the last party to execute this Agreement has executed this Agreement (the “Initial Closing Note Date”). On or before the Initial Closing Date, and subject to the terms and conditions of this Agreement, the Purchaser shall transfer One Million Forty Four Thousand One Hundred Twenty Seven Dollars ($1,044,127.00) (the “Escrowed Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing Xxxxxxx Xxxxxxxx & Xxxxxxx PLL (the “ClosingEscrow Agent”). Upon the Escrow Agent’s receipt of (1) the Initial Purchase Price, (2) a certificate (or certificates in such denominations as such Purchaser shall request) representing the Initial Purchased Shares issued in the name of Purchaser, and (3) a legal opinion in the transactions contemplated by this Agreement form and substance attached as Exhibit A that the issuance of such Initial Purchased Shares are duly authorized by all appropriate corporate action and otherwise in such form and substance acceptable to the Notes to be issued on Purchaser, the Closing Date by the Borrower Purchaser and the purchase thereof by Company shall jointly authorize the applicable Lenders shall occur at Escrow Agent to release the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date certificates and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions legal opinion to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower Purchaser and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Initial Purchase Price to the Borrower for Company. Effective upon the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf release of the Borrower Escrowed Purchase Price and registered in satisfaction of the remaining balance of the Initial Purchase Price, that certain Secured Promissory Note dated June 13, 2014 issued by the Company and MobileBits Corporation in the name of such Lender Purchaser in the intial principal amount of $155,873.00 shall be deemed cancelled and no longer of any force or its designeeeffect.

Initial Closing. In consideration for each applicable Lender’s payment On the Initial Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased this Agreement by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached parties hereto, the Borrower Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $5,775,000 (“Maximum Subscription Amount”) in principal amount of the Debentures. Each Purchaser shall issue and sell (i) deliver to the Escrow Agent, via wire transfer or a certified check, immediately available funds equal to such Lender Purchaser’s Subscription Amount as set forth on the Closing Date signature page hereto executed by such Purchaser, (ii) in the event that a Purchaser is cancelling an account payable of the Company as defined belowsuch Purchaser’s Subscription Amount, a letter evidencing the cancellation of such account payable (which amounts shall not exceed, in the aggregate, $775,000), or (iii) solely with respect to the Selway Notes, the tender thereof (with a Subscription Amount equal to the Selway Notes Amount), and the Company shall deliver to each applicable Lender severallyPurchaser its respective Debenture and a Warrant, but not jointly, agrees as determined pursuant to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit ASection 2.2(a), and in the aggregate principal amount as is Company, and each Purchaser shall deliver the other items set forth opposite such Lender’s name in column four (4) Section 2.2 deliverable at the Closing. Upon satisfaction of the Schedule of Lenders attached hereto. The closing (covenants and conditions set forth in Sections 2.2 and 2.3, the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Initial Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (EGS or such later date other location as is the parties shall mutually agreed to by the Borrower and the Agent)agree. On the Initial Closing Date, (i) each Lender the Company shall pay its pro rata share issue to the Placement Agent, in lieu of a cash fee, Debentures with a principal amount equal to 10% of the aggregate cash Subscription Amount in the Initial Closing Note Purchase Price along with a number of Warrants as determined pursuant to Section 2.2((iv) and such fee amount shall be deemed a Subscription amount hereunder (excluding for such purposes the Debenture and Warrants issued to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeePlacement Agent).

Initial Closing. In consideration The effectiveness of this Agreement, including the Lenders’ obligation to make the first Initial Warehousing Advance, is subject to the satisfaction, in the discretion of Administrative Agent, of the following conditions precedent: (a) Administrative Agent must receive the following, all of which must be satisfactory in form and substance to Administrative Agent: (1) This Agreement, duly executed by the Borrower and each Lender; (2) The Warehousing Note for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased , duly executed by the Lenders at Borrower, in the Closing (as defined below), which is set forth opposite principal amount of such Lender’s name in column four Commitment Amount; (3) The Guaranty, duly executed by the Guarantor; (4) The Pledge Agreement, duly executed by ACRC Lender LLC, relating to ACRC Lender LLC’s ownership of 100% of the Schedule Equity Interests in the Borrower; (5) The Fee Letter and all other applicable Loan Documents, duly executed by all applicable parties thereto; (6) All documents the Administrative Agent may reasonably request relating to the existence of Lenders attached heretothe Borrower, the Borrower shall issue Guarantor and sell to such ACRC Lender on LLC, the Closing Date (as defined below)authority for and the validity of this Agreement, the other Loan Documents, and any other matters relevant hereto or thereto. Such documentation shall include the organizational documents of the Borrower, the Guarantor and ACRC Lender LLC, certified to be true, correct and complete by an authorized officer thereof, a good standing certificate as to each applicable Lender severally, but not jointly, agrees to purchase of them from the applicable Secretaries of State, and appropriate certificates of authority and incumbency with respect to the individuals executing and delivering on their respective behalf the Loan Documents to which they respectively are a party; (7) An opinion of outside counsel to the Borrower, the Guarantor and ACRC Lender LLC acceptable to the Administrative Agent; (8) Satisfactory Uniform Commercial Code, tax lien, litigation and other searches of the appropriate public records for Borrower, Guarantor and ACRC Lender LLC; (9) Copies of Borrower’s or, if Borrower is covered through Servicer, Servicer’s, errors and omissions insurance policy, blanket bond coverage policy, fidelity bond coverage policy, and general commercial liability insurance policy insuring Borrower’s operations and premises, or certificates in lieu of such policies, showing compliance by Borrower as of the date of this Agreement with the provisions of Section 7.3(a); (10) Such financial statements and other information as the Administrative Agent shall have reasonably requested; (11) Compliance Certificates substantially in the form of Exhibits D-1 and D-2; (12) Perfection certificates from Borrower and ACRC Lender LLC; (13) A copy of the Loan Servicing Agreement as amended and in effect on the Closing Date; (14) Such other documents as Administrative Agent reasonably may require, a Note, in substantially the form attached hereto as Exhibit Aduly executed and delivered, and evidence satisfactory to Administrative Agent of the occurrence of any further conditions precedent to the closing of the credit facility established hereby as set forth herein or in any other Loan Document; and (15) Neither Borrower nor Guarantor shall have incurred any material liabilities, direct or contingent, other than in the aggregate principal amount as is set forth opposite such Lender’s name ordinary course of its business, since the Audited Statement Date that have not been disclosed Administrative Agent in column four writing. (4b) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) Administrative Agent shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, satisfied that (i) Borrower and Guarantor each Lender shall pay its pro rata share has obtained all material and appropriate authorizations and approvals of all Governmental Authorities required for the due execution, delivery and performance by each of Borrower and Guarantor of the Closing Note Purchase Price Loan Documents to the Borrower which it is or will be a party and for the Notes to be issued perfection of or the exercise by Administrative Agent of its rights and sold to such Lender at remedies under the ClosingLoan Documents, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Loan and all transactions contemplated hereby, shall be in material compliance with, and Borrower and Guarantor each shall have obtained all material and appropriate approvals pertaining to, all applicable Laws, including all governmental, environmental, ERISA retiree health benefits, workers’ compensation and other requirements, regulations and laws and shall not contravene any charter, by-law, debt instrument or other material contractual obligation of Borrower or Guarantor and Guarantor’s Subsidiaries. (c) Administrative Agent shall have filed such Uniform Commercial Code financing statements, in such jurisdictions, as Administrative Agent shall have determined, to be appropriate in order to perfect the security interest in the Collateral granted by Borrower pursuant to this Agreement or any other Loan Document. (d) Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior paid to the Closing) which such Lender is then purchasing, duly executed on behalf Administrative Agent (for its own account or for the account of the Borrower Lenders, as applicable) all Fees payable on or before the Closing Date pursuant to the Fee Letter, and registered in all of Administrative Agent’s costs and expenses of entering into this Agreement that have been invoiced at least one (1) Business Day before the name of such Lender or its designeeClosing Date, including, without limitation, reasonable attorneys fees.

Initial Closing. In consideration for each applicable Lender’s payment On the Initial Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased this Agreement by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached parties hereto, the Borrower shall issue and sell Company agrees to such Lender on the Closing Date (as defined below)sell, and each applicable Lender severallyof the Purchasers, but severally and not jointly, agrees to purchase from Shares for an aggregate purchase price of a minimum of $1,000,000 (“Minimum Offering Amount”) and up to a maximum of $1,500,000 (such maximum amount of $1,500,000 , the Borrower “Maximum Offering Amount” and such purchase and sale of at least the Minimum Offering Amount being the “Initial Closing”). Prior to the Initial Closing, each Purchaser shall deliver to the Escrow Agent such Purchaser’s Initial Closing Subscription Amount as set forth on the Closing Date, signature page hereto executed by such Purchaser by a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, such amount to be held in a non-interest-bearing escrow account, and the Company shall, on the Initial Closing Date, deliver to each Purchaser a certificate representing the number of Shares purchased by such Purchaser at the Initial Closing as more fully determined pursuant to Section 2.2(a). The Company and each Purchaser shall also deliver the other items set forth in Section 2.2 deliverable at the Initial Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3 and receipt of the Minimum Offering Amount into escrow, the Initial Closing shall occur at the offices of G&M or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, the Initial Closing Date shall occur on or before November 30, 2013 (such outside date, “Termination Date”). If the Schedule of Lenders Initial Closing is not held on or before the Termination Date, the Escrow Agent shall cause (i) all subscription documents executed by the Company or a Purchaser to be returned to the Company or such Purchaser, as applicable, and (ii) the Borrower shall deliver each Subscription Amount to each Lender the Notes (in the denominations as such Lender shall have requested prior be returned, without interest or deduction to the Closing) which Purchaser who delivered such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSubscription Amount.

Initial Closing. In consideration for each applicable Lender’s payment (a) Subject to the terms and conditions of its pro rata share this Agreement, the sale and purchase of the aggregate purchase price (Senior Care Shares and the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders Membership Interests, contemplated hereby shall take place at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “"Initial Closing”") of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur held at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago local time, on the date hereof, subject to notification of satisfaction (or waiver) last Business Day of the conditions to month during which the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by of the Borrower and the Agent). On the Closing Date, following occurs: (i) each Lender shall pay its pro rata share the expiration or termination of the Closing Note Purchase Price to applicable waiting periods under the Borrower for the Notes to be issued and sold to such Lender at the ClosingHSR Act, by wire transfer of immediately available fundsif any, as more fully set forth on the Schedule of Lenders and (ii) the Borrower satisfaction or waiver of all other conditions to the obligations of the parties set forth in Sections 8.01(a) and 8.02(a) of this Agreement, at the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other time or on such other date or at such other place as each Seller and the Purchaser may mutually agree upon in writing (the day on which the Initial Closing takes place being the "Initial Closing Date"). (b) At the Initial Closing, each Seller shall deliver or cause to be delivered to the Purchaser: (i) stock certificates evidencing such Seller's SeniorCare Shares duly endorsed in blank or accompanied by stock powers duly executed in blank; (ii) membership certificates evidencing such Seller's Membership Interests duly endorsed in blank or accompanied by transfer powers duly executed in blank, and (iii) the certificate required to be delivered pursuant to Section 8.02(a)(i). (c) At the Initial Closing, Xxxxxxx Xxxxxx-Xxxxxx will cause the Trusts to deliver membership certificates evidencing the Trust Interests, duly endorsed in blank or accompanied by transfer powers duly executed in blank. (d) At the Initial Closing, the Purchaser shall deliver to each Lender Seller: (i) its Pro Rata Share of the Notes (Purchase Price, less the Alandco Purchase Price, by wire transfer in the denominations as such Lender shall have requested immediately available funds, to an account or accounts designated at least two Business Days prior to the Closing) which Initial Closing Date by such Lender is then purchasingSeller in a written notice to the Purchaser; provided, duly executed on behalf however, that the amount of the Borrower Purchase Price delivered to Xxxxxxx Xxxxxx-Xxxxxx shall be reduced by the amount of the Purchase Price which Xxxxxxx Xxxxxx-Xxxxxx directs the Purchaser to pay to the Trusts for the Trust Interests; and registered (ii) the certificate required to be delivered pursuant to Section 8.01(a)(i). (e) At the Initial Closing, the Purchaser shall deliver to the Trusts the amount of the Purchase Price which Xxxxxxx Xxxxxx-Xxxxxx directs the Purchaser to pay to the Trusts for the Trust Interests, by wire transfer in immediately available funds, to an account or accounts designated at least two Business Days prior to the name Initial Closing Date by Xxxxxxx Xxxxxx-Xxxxxx in a written notice to the Purchaser. (f) All action to be taken at the Initial Closing shall be effective as of such Lender or its designee11:59 p.m. on the Initial Closing Date." 5. Section 2.04. Previous Section 2.04 is hereby renumbered Section 2.05, and a new Section 2.04 is hereby added as follows:

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share Except as otherwise specifically provided in this Paragraph 7.1, the granting by LGE of the aggregate purchase price Access Easement to TOF (the “Closing Note Purchase PriceInitial Closing”) will be held on a date mutually agreeable to both Parties which is no later than 6 months after the date of this Agreement. The Parties will agree to the form of all the closing documents in advance of such Closing. The Initial Closing is subject to the satisfaction of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) conditions and delivery of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (documents as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing listed below (the “ClosingInitial Closing Contingencies”): (a) of TOF shall deliver to Title Company the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, following: (i) each Lender shall pay its pro rata share an executed Access Easement; (ii) such affidavits, instruments and materials as may be reasonably required by the Title Company, if any; (iii) unless delayed until the Supplemental Initial Closing pursuant to the terms of Paragraph 7.2 below, the down payment of $898,000.00 for the LGE Property as more particularly described in Paragraph 3.2(a)(iv); (iv) unless delayed until the Supplemental Initial Closing pursuant to the terms of Paragraph 7.2 below, payment for the recording of the Closing Note Purchase Price Down Payment Deed of Trust; and (v) an executed amendment to the Borrower Delivery Schedule (Exhibit E hereto) amending the Delivery Date Outside to a date which is two calendar years after the date of the Initial Closing, unless a Supplemental Initial Closing will be required in accordance with the terms of Paragraph 7.2, in which case the required amendment to the Delivery Date Outside will not constitute an Initial Closing Contingency, but instead, such amendment will then constitute a Supplemental Initial Closing Contingency. (b) LGE shall deliver to Title Company, the following: (i) an executed Access Easement; (ii) payment for the Notes recording of the Access Easement; (iii) a stock assignment executed by LGE evidencing LGE’s request to the Rural Ditch Company to include on the Subject Shares a lien in favor of TOF to secure the Down Payment Promissory Note; (iv) such affidavits, instruments and materials as may be issued reasonably required by the Title Company, if any; (v) unless delayed until the Supplemental Initial Closing pursuant to the terms of Paragraph 7.2 below, the Down Payment Promissory Note required to evidence the Xxxxxx Farm down payment received, and sold the Down Payment Deed of Trust required to secure such Lender Down Payment Promissory Note; and (vi) an executed amendment to the Delivery Schedule (Exhibit E hereto) amending the Delivery Date Outside to a date which is three and a half calendar years after the date of the Initial Closing, unless a Supplemental Initial Closing will be required in accordance with the terms of Paragraph 7.2, in which case the required amendment to the Delivery Date Outside will not constitute an Initial Closing Contingency, but instead, such amendment will then constitute a Supplemental Initial Closing Contingency. (c) In conjunction with the Initial Closing, Title Company will be directed to and will record the Access Easement in the real property records of Weld County, Colorado for the benefit of TOF; deliver to TOF the original of the Access Easement (after recording), along with providing copies of the recorded Access Easement to both LGE and TOF, all at the Closingexpense of LGE; and, unless delayed until the Supplemental Initial Closing pursuant to the terms of Paragraph 7.2 below, deliver to TOF the original Down Payment Promissory Note; record the Down Payment Deed of Trust in the real property records of Weld County, Colorado for the benefit and at the expense of TOF; deliver to TOF the original Down Payment Deed of Trust (after recording), with copies to LGE; and deliver to LGE by wire transfer the sum of immediately available all cash down payments actually received by Title Company from TOF, less the closing expenses which LGE may direct Title Company to pay with such funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (a) If the aggregate Escrow Agent shall (i) be holding in escrow collected funds representing Subscription Proceeds in an amount equal to the full purchase price of 400,000 Shares and (ii) have received from the “Company on or before the Termination Date and the Initial Closing Note Purchase Price”) of Date, respectively, the Notes to be purchased by the Lenders at the Closing Facsimile Notice (as defined below), which is set forth opposite such Lender’s name in column four (4herein) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date related Confirmation (as defined below)herein) described in paragraph 4(b) hereof, then the Escrow Agent shall disburse the collected funds then held in the Escrow Account (less fees of the Escrow Agent as provided herein) to the Company, as provided herein and each applicable Lender severallysubject to the provisions hereof, but not jointlyat the Initial Closing. As used in this Agreement, agrees to purchase from the Borrower on the terms "Initial Closing" and "Initial Closing Date" shall mean, a Noterespectively, in substantially the form attached hereto as Exhibit A, and in first disbursement of Subscription Proceeds by the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by Escrow Agent pursuant to this Agreement and the issuance date upon which such disbursement occurs; the Initial Closing shall be scheduled as determined by the parties hereto. (b) On or before the Termination Date, the Escrow Agent shall have received Facsimile Notice (as defined herein) from the Company that all conditions precedent to the disbursement of Subscription Proceeds on the Initial Closing Date have been fully satisfied as required under the Registration Statement and Prospectus, specifically certifying that subscriptions for not less than 400,000 Shares have been received and accepted by the Company on or before the Termination Date; Confirmation (as defined herein) of such Facsimile Notice shall be delivered to the Escrow Agent on or before the Initial Closing Date, dated as of the Notes to Initial Closing Date. (c) Provided that the Escrow Agent shall have (i) received and be issued holding in escrow collected Subscription Proceeds as required under paragraph 3(a) hereof, (ii) received the Facsimile Notice (as defined herein) required under paragraph 3(b) hereof on or before the Closing Termination Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time (iii) received Confirmation (as defined herein) of the Closing (Facsimile Notice required under paragraph 3(b) hereof on or before the “Initial Closing Date”) shall be 10:00 a.m., Chicago timethe Escrow Agent shall, on the date hereofInitial Closing Date, subject disburse the collected funds then held in the Escrow Account as follows: First, to notification the Escrow Agent in the amount of satisfaction any fees then due and payable first to the Escrow Agent, and second to the Company in the amount of any balance then remaining in the Escrow Account. (or waiverd) If any of the conditions described in paragraphs 3(a) and 3(b) hereof shall not have been fully satisfied at the close of business on the date (the Termination Date or Initial Closing Date) specified herein for such compliance, the Escrow Agent shall promptly return all Subscription Proceeds directly to the Closing set forth in Section 5.1 below (subscribers, without interest thereon or such later date as is mutually agreed to by the Borrower deduction therefrom, and the Agent). On the Closing Date, (i) each Lender escrow provided for herein shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeethereupon terminate.

Initial Closing. In consideration The obligation of each Buyer hereunder to purchase the Preferred Shares and the Series A Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each applicable LenderBuyer’s payment of sole benefit and may be waived by such Buyer at any time in its pro rata share sole discretion by providing the Company with prior written notice thereof: (i) The Company and each of the aggregate purchase price (the “Closing Note Purchase Price”) Guarantors shall have duly executed and delivered to such Buyer each of the Notes following documents to be which it is a party: (A) each of the Transaction Documents, (B) such number of applicable Preferred Shares being purchased by the Lenders such Buyer at the Initial Closing (pursuant to this Agreement as defined below), which is set forth opposite such LenderBuyer’s name in column four (3) of the Schedule of Buyers and delivered to such Buyer a copy from the Company’s books and records evidencing such issuance in book-entry form and (C) the related Series A Warrants being purchased by such Buyer at the Initial Closing pursuant to this Agreement as set forth opposite such Buyer’s name in column (4) of the Schedule of Lenders attached heretoBuyers. (ii) Such Buyer shall have received the opinions of Dechert LLP and Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, the Borrower shall issue and sell to such Lender on Company’s outside counsels, dated as of the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, in the form of Exhibit G-1 and Exhibit X-0 xxxxxxxx xxxxxx. (xxx) The Company shall have delivered to such Buyer a Notecopy of the Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent. (iv) The Company shall have delivered to such Buyer certificates evidencing the formation and good standing of the Company and each of the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) calendar days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company’s and each of the Guarantors’ qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and the Guarantors conduct business, as of a date within ten (10) calendar days of the Initial Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of the Guarantors as certified by the Secretary of State (or comparable office) of the jurisdiction of formation of the Company and each of its Subsidiaries within ten (10) calendar days of the Initial Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s and each of the Guarantors’ Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and each of the Guarantors and (iii) the Bylaws of the Company and each of the Guarantors, each as in effect at the Initial Closing, in substantially the form attached hereto as Exhibit AK. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for such representations qualified by materiality or Material Adverse Effect, which are true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company or the Guarantors at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Intellectual Property Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the aggregate principal amount form attached hereto as is set forth opposite Exhibit L. (ix) The Company shall have delivered to such LenderBuyer a letter from the Company’s name in column four transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (45) calendar days of the Schedule Initial Closing Date. (x) The Escrow Agreement shall have been executed and delivered to such Buyer by the other parties thereto and the Escrow Account shall have been established with the Escrow Agent. (xi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of Lenders attached hereto. the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xii) The closing Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xiii) The Certificate of Designations shall have been filed with the “Closing”Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended. (xiv) of The Company and the Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender Buyer or its designeecounsel may reasonably request.

Initial Closing. In consideration At the Initial Closing (unless otherwise indicated), if appropriate, each Required Seller shall deliver, or cause to be delivered, the following to the Buyer, duly executed and properly acknowledged, relating to the Ownership Shares being sold, assigned or transferred at such Initial Closing: (i) a Deed for each applicable Lender’s payment the NAEC Real Property, substantially in the form of its pro rata share EXHIBIT A(I) hereto and any owner's affidavits or similar documents reasonably required by the Title Company; (ii) Deeds for the Ownership Shares of the aggregate purchase price (interests of each Required Seller in the “Jointly Owned Real Property being transferred at the Initial Closing Note Purchase Price”substantially in the form of EXHIBIT A(II) of the Notes to be purchased hereto, and any owner's affidavits or similar documents required by the Lenders at Title Company; (iii) a Xxxx of Sale, substantially in the Closing form of EXHIBIT B hereto; (as defined below)iv) an Asset Demarcation Agreement, which substantially in the form of EXHIBIT C hereto; (v) if the Undivided Interest is set forth opposite such Lender’s name in column four (4) of transferred to the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender Buyer on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a Notein the case of UI, the Owner Trustee Deed and Xxxx of Sale, substantially in the form of EXHIBIT K hereto; (vi) an Assignment and Assumption Agreement, substantially in the form of EXHIBIT D hereto, in recordable form if necessary; (vii) an Interconnection Agreement, substantially in the form attached hereto as Exhibit Aof EXHIBIT E hereto, duly executed by PSNH; (viii) an Interim Services Agreement, if requested in writing by the Buyer and if agreed to by a Seller or its Affiliate who will provide the services, substantially in the form of EXHIBIT J hereto, which shall cover those services set forth in SCHEDULE 2.11(A)(VIII); (ix) the Release of Mortgage Indenture, in the case of CL&P and NAEC, if applicable, substantially in the form of EXHIBIT F hereto, and in the aggregate principal amount case of any other Required Seller, if applicable, in such other form as is set forth opposite meets the requirements of such Lender’s name in column four Seller's mortgage indenture, if any; (4x) an Easement Agreement, if the same has been executed by PSNH, NAEC and the other Participants; (xi) originals, or copies certified to the Buyer's satisfaction, of the Schedule Transferable Permits, Material Contracts, Emergency Preparedness Agreements, Intellectual Property Licenses, Other Assigned Contracts and Leases, which shall be delivered to the Buyer at the Facility; (xii) all consents, waivers or approvals necessary for the transfer at such Closing of Lenders attached hereto. The closing (the “Closing”) Ownership Shares of such Required Sellers or the consummation of the transactions contemplated by this Agreement and the issuance Related Agreements; (xiii) a certificate from an authorized officer of such Required Seller, dated the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Initial Closing Date”) shall be 10:00 a.m., Chicago timeto the effect that, on the date hereofto such officer's Knowledge, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower Sections 6.1(a), 6.1(b), 6.1(d), 6.1(e), 6.1(f), 6.1(g), 6.1(i) and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.6.1

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share 5.1 The closing of the aggregate purchase price sale of the MLU Shares and the SDG Shares (the “Closing Note Purchase PriceInitial Closing”) shall be held at the office of the Notes Notary at Xxxxxxxxxxxxx 000; 0000 XX Xxxxxxxxx at 12:00 p.m. on the ​ Initial Closing Date (which shall occur no later than five (5) Business Days after the date of this Agreement), or such other place, date or time as the Parties shall agree. 5.2 At the Initial Closing (unless already having occurred prior to Initial Closing), the Parties shall deliver to the Notary or shall procure to be purchased delivered to the Notary: (a) a duly signed and dated version of this Agreement; (b) (in the case of Yandex) the original shareholders registers of each of MLU and SDG; (c) a power of attorney in favor of the Notary and the employees of Van Doorne N.V. to execute the relevant Notarial Transfer Deed and perform any acts required in relation thereto, duly executed in accordance with the signing instructions by each of the Sellers, Uber, Yandex, SDG and MLU; (d) a resolution executed by its board of directors, or a duly authorized committee thereof, approving entry by each Party into this Agreement and the transfers of the MLU Sale Shares and the SDG Sale Shares; (e) (in the case of the Sellers) copies of any resolutions and approvals required to effectuate the transfer of the MLU Sale Shares and the SDG Sale Shares; (f) resignation letters of [***] and [***] relating to their resignation as supervisory director of SDG, effective as per the moment of the execution of the relevant Notarial Transfer Deed; (g) (in the case of Yandex) copies of any resolutions and approvals required to effectuate the payment of the Initial Closing Cash Consideration; (h) a resolution executed by the Lenders at general meeting of SDG accepting the Closing resignation of [***] and [***]; (i) an analysis of the material tax consequences of the Demerger in the Netherlands and Russia, prepared by appropriate outside Tax counsel and/or a member of the “Big Four” (or, in respect of Russia, by the Yandex Head of Tax; provided that Yandex shall deliver an analysis by a member of the “Big Four” within thirty (30) days following the Initial Closing), with respect to each such jurisdiction, in form and substance reasonably acceptable to Uber; (j) a duly completed and executed Internal Revenue Service Form 8832 for each Tax Relevant Entity (as defined below), which is set forth opposite such Lender’s name in column four ) specified by Uber at least two (42) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions days prior to the Closing set forth in Section 5.1 below Initial Closing; and (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Datek) duly signed (and, where necessary, witnessed) versions of each of: (i) each Lender the Deed of Termination; (ii) the Deed of SHA Novation; (iii) the Deed of SHA Amendment; (iv) the Amended Deed of Covenant; (v) the Amended Trademark License; and (vi) the Reimbursement Agreement, which shall pay its pro rata share be delivered, released and dated by the parties thereto at Initial Closing, the Deed of SHA Novation being delivered and released immediately before the Deed of SHA Amendment. 5.3 Conditional upon compliance by the Parties with their obligations under Clause 5.2, to be confirmed by the Notary to Yandex and the Sellers by email, Yandex shall transfer or cause to be transferred the Initial Closing Note Purchase Price Cash Consideration to the Borrower for the Notes to be issued and sold to such Lender at the Closing, Uber Bank Account by wire transfer of immediately available funds. 5.4 Yandex shall procure that the Notary and Sellers shall receive a copy of the SWIFT message, as more evidencing that an amount equal to the Initial Closing Cash Consideration has been debited from the Yandex Bank Account (the “Initial Closing SWIFT Confirmation”). 5.5 Immediately upon receipt of the Initial Closing SWIFT Confirmation, the Notary shall (and the Parties shall procure that the Notary shall and pursuant to this Agreement and the powers of attorney from each of Sellers and Yandex, the Notary is hereby irrevocably and fully set forth on authorized to) execute the Schedule relevant Notarial Transfer Deed. 5.6 With effect from the Initial Closing, all of Lenders the Sellers’ rights in and (ii) to the Borrower MLU Sale Shares and the SDG Sale Shares shall deliver to each Lender terminate, and title, ownership and all of the Notes (rights, preferences, privileges and obligations associated with all such shares shall vest in the denominations as such Lender shall have requested Yandex. 5.7 At or prior to the Initial Closing) which , each Party shall take such Lender is then purchasingactions and execute such additional documents, duly executed on behalf certificates and instruments and take such other steps as shall be reasonably necessary to give effect to the transactions contemplated to take place at the Initial Closing and shall take such actions following the Initial Closing as may be reasonably necessary or appropriate in furtherance of the Borrower agreements and registered in the name of such Lender or its designeecovenants contained herein.

Initial Closing. In consideration for each applicable Lender’s payment (a) Subject to the terms and conditions of its pro rata share of this Agreement, at the aggregate Initial Closing Seller shall sell and Purchaser shall purchase price 289,855 Shares (the “Initial Shares) for the Initial Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing Price (as defined below). (b) The Initial Closing shall take place at 4:00 p.m., Central European Time, on or about February 1, 2005 or, if earlier, on the first Business Day occurring five days following satisfaction or waiver of all of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Initial Closing). The Initial Closing shall occur at such location as the parties may mutually agree. (c) At the Initial Closing: (i) Purchaser shall deliver to Seller: (A) payment, by wire transfer to the bank account designated in writing by Seller, immediately available funds in U.S. dollars in an amount equal to U.S.$1,000,000 (the Initial Closing Purchase Price) as full consideration for the Initial Shares; (B) the officer’s certificate referred to in Section 7.2(c); (C) resignation letters of Xxxx Xxxxx and Xxxxx Xxxxx, which shall only be effective in the event that (a) CORCYRA does not timely satisfy the conditions contained in Section 7.2 of this Agreement or (b) this Agreement is set forth opposite such Lender’s name otherwise terminated pursuant to Section 8.1 hereof, including if CORCYRA shall be in column four default of its obligation to make any Premium Payment specified in Section 2.3 of this Agreement; and (4D) the Escrow Agreement, dated as of the Schedule date of Lenders attached heretothe Initial Closing, the Borrower shall issue executed by Purchaser and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, substantially in substantially the form attached hereto as of Exhibit A, and in providing that Seller shall retain all voting and other rights associated with the aggregate principal amount as is set forth opposite such Lender’s name in column four Final Shares (4) and Seller shall continue to be the beneficial owner of the Schedule of Lenders attached hereto. The closing (Final Shares) until the “Closing”) Final Closing Purchase Price is paid in full; provided, however, that so long as Purchaser is not in default in its obligations hereunder, and this Agreement remains in effect, the Seller shall vote the Final Shares in accordance with instructions from Purchaser, so long as such instructions are received sufficiently in advance of the transactions contemplated by this Agreement applicable vote and such voting would not violate applicable law or require amendments to any SEC filing of Seller or Purchaser. Seller shall not be obligated to vote the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth Final Shares in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, accordance with Purchaser’s instructions in connection with any matter (i) each Lender shall pay proposed by or on behalf of Purchaser or any of its pro rata share of the Closing Note Purchase Price Affiliates that Purchaser did not previously disclose to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Seller in its Schedule of Lenders and 13D or (ii) as to which Purchaser or any of its Affiliates would have an interest that is different from the Borrower interests of the other stockholders of the Company such as an interest that would be of a nature that would have to be disclosed pursuant to Item 1005(d) of Regulation M-A or Item 404 of Regulation S-K, if either of such provisions were applicable. (ii) Seller shall deliver to each Lender Purchaser: (A) one or more certificates representing the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingInitial Shares, together with duly executed on behalf stock powers endorsed in blank; (B) the officer’s certificate referred to in Section 7.1(c); and (C) the Escrow Agreement executed by Seller and JPMorgan Chase Bank N.A. (the Escrow Agent). (iii) Seller shall deliver to Escrow Agent: (A) the Escrow Agreement executed by Purchaser and Seller; and (B) one or more certificates representing the Final Shares (as defined in Section 2.4(a)) to be held in escrow in a segregated escrow account in accordance with the terms of the Borrower Escrow Agreement. (d) Attached hereto as Exhibit B, and registered in effective upon the name signing of such Lender or its designeethis Agreement, is a letter from Xxxxx Har Adir, the sole officer, director and shareholder of Purchaser, pursuant to which Xxxxx Har Adir has committed personally to fund the obligations of Purchaser under Article 2 of this Agreement.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of Subject to and in reliance upon the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below)representation, which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached heretowarranties, terms and conditions contained herein, the Borrower shall Company agrees to issue and sell to such Lender on the Closing Date (as defined below)Purchasers, and each applicable Lender severallythe Purchasers, but severally and not jointly, agrees agree to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and (i) Notes in the aggregate principal amount as is amounts set forth opposite such Lendereach Purchaser’s name in column four (4) under the heading “Initial Closing Principal Amount of Notes” on the Schedule of Lenders attached hereto. Purchasers set forth in Schedule I hereto and (ii) Warrants for that number of Warrant Shares set forth opposite each Purchaser’s name under the heading “Initial Closing Warrant Shares” on the Schedule of Purchasers set forth in Schedule I. The closing initial purchase and sale of the Notes and Warrants shall take place on October 8, 2010 (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000000, Xxxxxxx, Xxxxxxxx 00000XX, 00000 or such other date, time or place as may be mutually agreed upon. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes aggregate purchase price to be issued and sold to such Lender paid at the ClosingInitial Closing by each Purchaser, by wire transfer of immediately available fundsseverally and not jointly, for each Purchaser’s respective Note and Warrant as more fully set forth on Schedule I shall be the dollar amount set forth on Schedule of Lenders I under the heading “Initial Closing Total Purchase Price.” The Company will issue and (ii) the Borrower shall deliver to each Lender the such Notes (in the denominations as and such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name Warrants against payment of such Lender Initial Closing Total Purchase Price by wire transfer, bank check, certified check or its designeeany combination of such methods and payments.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (i) Subject to and in reliance upon the aggregate purchase price representations and warranties set forth in Section 3 below, and the satisfaction (the “Closing Note Purchase Price”or waiver) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is conditions set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached heretoSections 6 and 7 below, the Borrower Parent shall issue and sell to such Lender on the Closing Date (as defined below)each Buyer, and each applicable Lender Buyer severally, but not jointly, agrees to purchase from the Borrower Parent on the Initial Closing DateDate (as defined below), a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount of Debentures as is set forth opposite such LenderBuyer’s name in column four (43) on the Schedule of Buyers. The aggregate purchase price (the “Initial Purchase Price”) of the Schedule of Lenders attached heretoDebentures and Closing Securities to be purchased by the Buyers at the Initial Closing shall be equal to $625,000. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance purchase of the Notes to be issued on the Closing Date Debentures by the Borrower and the purchase thereof by the applicable Lenders Buyers shall occur at the offices of DeMint Law, PLLC, 3753 Xxxxxx Xxxxxx Xxxxxxxx LLPParkway, 000 Xxxx Xxxxxx XxxxxxXxxxx Xxxxx 000, Xxxxx 0000Xxx Xxxxx, Xxxxxxx, Xxxxxxxx Xxxxxx 00000. The date and time of the Closing (the “Initial Closing Date”) shall be 10:00 a.m., Chicago timePacific Standard Time, on the date hereof, subject to notification of satisfaction . (or waiverii) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Initial Closing Date, (i) each Lender Buyer shall pay its pro rata share of the Closing Note aggregate Initial Purchase Price to the Borrower Parent for the Notes to be issued and Debentures sold to such Lender Buyer at the Initial Closing, by wire transfer of immediately available fundsfunds in accordance with Parent’s written wire instructions (or the applicable escrow wire instructions, as more fully set forth on the Schedule of Lenders if any), and (ii) the Borrower Parent shall deliver to each Lender Buyer (A) the Notes Debentures (in the denominations as such Lender Buyer shall have requested prior to the Closing) which such Lender Buyer is then purchasing, duly executed on behalf of the Borrower Parent and registered in the name of such Lender Buyer or its designeedesignee and (B) a Class C Warrant.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and under Section 2.1 above (the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders “Initial Closing”) shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx Skadden, Arps, Slate, Xxxxxxx & Xxxx (UK) LLP, 000 00 Xxxx Xx, Xxxxxx Xxxxx, Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The counsel to the Company, on the second Business Day after satisfaction or waiver of the Initial Conditions Precedent (other than those that are by their nature to be satisfied at the Initial Closing, but subject to the satisfaction or waiver of such conditions at the Initial Closing) or at such other location, date and time of as may be agreed upon between the Closing Purchaser and the Company (the “Initial Closing Date”) ). At the Initial Closing, the Company shall deliver to the Purchaser, in book-entry form, the Initial Shares and evidence reasonably satisfactory to the Purchaser that a global note, with a face value of $70,000,000, in registered form representing the New Debt has been delivered to the Depositary Trust Company, Euroclear S.A./N.V. or Clearstream Banking, société anonyme, each to be 10:00 a.m., Chicago time, on registered in the date hereof, subject to notification of satisfaction (or waiver) name of the conditions to the Closing set forth Purchaser, or in Section 5.1 below (such nominee’s or such later date nominees’ name(s) as is mutually agreed to designated by the Borrower and the Agent). On the Closing DatePurchaser in writing, (i) each Lender shall pay its pro rata share against payment of the Closing Note Aggregate Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available fundsfunds to such account or accounts as the Company shall designate in writing to the Purchaser no later than two Business Days prior to the Initial Closing Date. In addition, subject to the performance of the obligations of the Company and the Purchaser in Section 2.1 and Section 2.2 of this Agreement, the parties hereto shall approve, execute and deliver, or cause to be approved, executed and delivered, in each case on behalf of itself or its Affiliates party thereto (and with respect to the irrevocable voting agreements referenced below, the Company will procure the executed versions from each of the parties thereto other than the Purchaser), as more fully set forth applicable, on the Schedule date hereof the following documents: (a) the Governance Agreement; (b) the Registration Rights Agreement; (c) irrevocable voting agreements executed by each member of Lenders the Company Board and the Purchaser and its Affiliates who hold Common Stock to vote in favor of the matters listed for approval in Section 8.2; and (d) a certificate of the Company’s Secretary certifying as to resolutions passed by the Company Board effectively: (i) approving the entry into this Agreement and the execution and consummation of the transactions described herein and satisfying the business combination provisions of Section 203 of the Delaware General Corporation Law; and (ii) approving any acquisition of Common Stock pursuant to this Agreement and any other Operative Agreement by the Borrower shall deliver Purchaser (and any of its permitted assigns hereunder and thereunder) in order not to each Lender cause the Notes (in Purchaser and its permitted assigns hereunder and thereunder to constitute an “Acquiring Person” under the denominations as such Lender shall have requested prior to Rights Agreement by and between the Closing) which such Lender is then purchasingCompany and American Stock Transfer & Trust Company, duly executed on behalf of the Borrower and registered in the name of such Lender LLC, dated September 6, 2011, or its designeeany other “poison pill” or similar arrangement.

Initial Closing. In consideration The obligation of each Buyer hereunder to purchase the Notes and the related Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each applicable LenderBuyer’s payment of sole benefit and may be waived by such Buyer at any time in its pro rata share of sole discretion by providing the aggregate purchase price Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer this Agreement, the “Closing Note Purchase Price”) of Voting Agreement, the Registration Rights Agreement, the Notes to be purchased by the Lenders at the Closing (in such principal amounts as defined below), which is set forth opposite across from such LenderBuyer’s name in column four (43) of the Schedule of Lenders Buyers) and the related Warrants (in such numbers as is set forth across from such Buyer’s name in column (5) of the Schedule of Buyers) being purchased by such Buyer at the Initial Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Xxxxxxxxx Traurig, P.A. the Company’s outside counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit F-1 attached hereto, and the Borrower opinion of Akerman Senterfitt, in substantially the form of Exhibit F-2 attached hereto. (iii) The Company shall issue and sell have delivered to such Lender on Buyer a certificate evidencing the Closing Date (as defined below), formation and good standing of the Company and each applicable Lender severallyof its Material Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or equivalent) of such jurisdiction of formation as of a date within ten (10) days of the Initial Closing Date. (iv) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, but not jointlyas of a date within ten (10) days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Florida within ten (10) days of the Initial Closing Date. (vi) The Company shall have delivered to such Buyer a certificate, agrees to purchase from executed by the Borrower on Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a Noteform reasonably acceptable to such Buyer, (ii) the Articles of Incorporation and (iii) the Bylaws, each as in effect at the Initial Closing, in substantially the form attached hereto as Exhibit AG. (vii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the aggregate principal amount form attached hereto as is Exhibit H. (viii) The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the Initial Closing Date. (ix) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall proceedings regarding such suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market, other than with respect to those issues set forth opposite such Lenderon the Company’s name in column four Current Report on Form 8-K, dated as of January 25, 2006. (4x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Schedule of Lenders Notes and the related Warrants. (xi) The Company shall have delivered to such Buyer duly executed Voting Agreements, in the form attached hereto. The closing hereto as Exhibit J (the “ClosingVoting Agreements”). (xii) of The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement and as such Buyer or its counsel may reasonably request. (xiii) No event or events shall have occurred since the issuance date hereof that, taken individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. (xiv) The Company, contemporaneously with the Initial Closing, shall have consummated the transactions contemplated by the Guardian Purchase Agreement. (xv) The aggregate of the Notes to be issued on the Closing Date Initial Purchase Prices paid by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) all Buyers shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeenot less than $45 million.

Initial Closing. In consideration for The obligation of each applicable Lender’s payment of its pro rata share of Buyer hereunder to purchase the aggregate purchase price (Preferred Shares and the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders related Warrants at the Initial Closing (as defined below)is subject to the satisfaction, which is set forth opposite such Lender’s name in column four (4) of at or before the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a Noteof each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer (A) each of the Transaction Documents and (B) the certificates evidencing the number of Preferred Shares being purchased by such Buyer at the Initial Closing pursuant to this Agreement and (C) the Warrants being purchased by such Buyer at the Initial Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Xxxxxxxxx Xxxxxxx, LLP, the Company’s outside counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit D attached hereto. (iii) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Initial Closing Date. (iv) The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the Initial Closing Date. (vi) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Initial Closing, in the form attached hereto as Exhibit AE. (vii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall remain true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters set forth in the aggregate principal amount form attached hereto as is set forth opposite such LenderExhibit F. (viii) The Company’s name executive officers shall have entered into a Lock-Up Agreement in column four (4) of the Schedule of Lenders form attached hereto. The closing hereto as Exhibit G (the “ClosingLock-Up Agreements”). (ix) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the transactions contemplated by this Agreement and Securities. (x) The Certificate of Designations in the issuance form attached hereto as Exhibit A shall have been filed with the Secretary of State of the Notes to be issued on the Closing Date by the Borrower State of Delaware and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m.in full force and effect, Chicago time, on enforceable against the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth Company in Section 5.1 below (or such later date as is mutually agreed to by the Borrower accordance with its terms and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall not have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeebeen amended.

Initial Closing. In consideration Upon receipt of binding subscription agreements for each applicable Lender’s payment of its pro rata share of up to the Maximum Offering in the aggregate purchase price plus the Over-allotment, if applicable (the “Subscriptions”), and subject to the other terms and conditions of this Agreement, at a time to be agreed upon by the Company and Paramount Capital, Inc. (the “Placement Agent”) and of which the Subscribers will be notified by the Placement Agent by facsimile transmittal or otherwise, the Company will sell to the Subscribers and the Subscribers will purchase from the Company, on a pro-rata basis, that portion of the Common Stock and Warrants included in the Units subscribed for by Subscribers under the terms of the Offering, equal to a number of Securities (as defined herein), assuming full exercise of the Warrants, that the Company is able to sell upon issuance of 19.9% of the Company’s outstanding shares of Common Stock immediately prior to such issuance (the “Initial Closing” and such date the “Initial Closing Note Date”), and the Subscribers will remit to the Escrow Agent prior to the Initial Closing the applicable pro-rata portion of the Aggregate Purchase Price for the Initial Closing (the “Initial Closing Amount”) for release to the Company at the Initial Closing. In no event shall the Company sell an amount of Securities (assuming full exercise of the Warrants) at the Initial Closing that would exceed 19.9% of the Company’s outstanding shares of Common Stock immediately prior to such issuance. The Placement Agent will notify each Subscriber, after consultation with the Company, as to such Subscriber’s portion of the Initial Closing Amount (each an “Initial Subscriber Amount”) by providing such Subscriber with a notice substantially similar to that attached hereto as Exhibit A. The “Aggregate Purchase Price”) ” shall mean the product of the Notes amount of Units sold to be purchased by Subscribers and the Lenders at Unit Price and shall equal the Initial Closing Amount (as defined below) plus the Final Closing Amount (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the Upon compliance with all conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed Initial Closing, the Placement Agent, with notice to by the Borrower and Company, shall authorize the Agent). On Escrow Agent to release the Closing Date, (i) each Lender shall pay its pro rata share proceeds of the Initial Closing Note Purchase Price to the Borrower for Company, less fees and expenses due to the Notes Placement Agent. Interest, if any, that has accrued with respect to the Initial Closing Amount while in escrow shall also be issued distributed to the Company at the Initial Closing and sold Subscribers will have no right to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeinterest.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The initial closing of the aggregate purchase price and sale of Preferred Shares hereunder shall occur as promptly as practicable after the execution and delivery of this Agreement by the parties hereto at 8:00 a.m. Central Time at the Houston, Texas offices of Vxxxxx & Exxxxx L.L.P. (1001 Fxxxxx, Suite 2500, Houston, Texas 77002) or at such other time and location as the parties shall mutually agree, upon satisfaction of the covenants and conditions set forth in Sections 2.3 and 2.5 (the “Initial Closing”). The parties agree that the Initial Closing Note Purchase Price”) may occur via delivery of facsimiles or photocopies of the Notes Transaction Documents and the closing deliverables contemplated hereby and thereby. Unless otherwise provided herein, all proceedings to be purchased taken and all documents to be executed and delivered by the Lenders all parties at the Initial Closing (as defined below)will be deemed to have been taken and executed simultaneously, which is and no proceedings will be deemed to have been taken nor documents executed or delivered until all have been taken. At the Initial Closing, on the Initial Closing Date, upon the terms and subject to the conditions set forth opposite such Lender’s name in column four herein: (4a) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell Company agrees to such Lender on the Closing Date (as defined below)sell, and each applicable Lender severallyPurchaser, but severally and not jointly, agrees to purchase from purchase, a number of Preferred Shares (rounded down to the Borrower nearest whole number) equal to the Initial Closing Purchase Price set forth below such Purchaser’s name on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) applicable signature page of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date divided by the Borrower Per Share Purchase Price; and (b) to effect the purchases and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth sales described in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent2.1(a). On the Closing Date, (i) each Lender Purchaser shall pay its pro rata share of deliver to the Company, via wire transfer, to an account designated by the Company at least two (2) Business Days prior to the Initial Closing Note Date, immediately available funds equal to such Purchaser’s Initial Closing Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule applicable signature page of Lenders and this Agreement, (ii) the Borrower Company shall deliver to each Lender Purchaser the Notes number of Preferred Shares described in Section 2.1(a) and (iii) the Company and each Purchaser shall deliver the other items set forth in Section 2.3 deliverable at the denominations as such Lender shall have requested prior to the Initial Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Initial Closing. In consideration The obligation of each Buyer hereunder to purchase the Initial Notes and the Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that, other than with respect to deliverables to the Placement Agent pursuant to paragraph 7(a)(ii) hereof, these conditions are for each applicable Lender’s payment Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company and each of its pro rata share Subsidiaries shall have duly executed and delivered to such Buyer each of the aggregate purchase price following documents to which it is a party: (A) each of the “Transaction Documents, (B) the Initial Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Initial Closing Note Purchase Price”pursuant to this Agreement and (C) the Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Initial Closing pursuant to this Agreement. (ii) Such Buyer and the Placement Agent shall have received the opinion of Xxxxxxxxxx & Xxxxx LLP, the Company's outside counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit G attached hereto. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit F attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within ten (10) days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's and each of its Subsidiaries' qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and its Subsidiaries conduct business, as of a date within ten (10) days of the Initial Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of its Subsidiaries as certified by the Secretary of State (or comparable office) of the Notes jurisdiction of formation of the Company and each of its Subsidiaries within ten (10) days of the Initial Closing Date. (vii) The Company shall have delivered to be purchased such Buyer a certificate, executed by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) Secretary of the Schedule Company and dated as of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's and each of its Subsidiaries' Board of Directors in a Noteform reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and each of its Subsidiaries and (iii) the Bylaws of the Company and each of its Subsidiaries, each as in effect at the Initial Closing, in substantially the form attached hereto as Exhibit H. (viii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit I. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the Initial Closing Date. (x) The Company shall have delivered to each Buyer a lock-up agreement in the form attached hereto as Exhibit J executed and delivered by each of the Company's Chief Executive Officer and Chief Financial Officer (the lock-up agreements provided under the terms of this Agreement, each a "Lock-Up Agreement" and collectively, the "Lock Up Agreements"). (xi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xiii) Each of the Company's Subsidiaries shall have executed and delivered to such Buyer the Guarantee Agreement. (xiv) The Collateral Agent shall have received certified copies of request for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral, and the results of searches for any tax lien and judgment lien filed against such person or its property, which results, except as otherwise agreed to in writing by the aggregate principal amount as is set forth opposite Collateral Agent, shall not show any such Lender’s name in column four liens. (4xv) The Collateral Agent shall have received the Security Agreement, duly executed by the Company and each of its Subsidiaries, together with (A) the original stock certificates representing all of the Schedule equity interests and all promissory notes required to be pledged thereunder, accompanied by undated stock powers and allonges executed in blank and other proper instruments of Lenders attached hereto. transfer and (B) any copyright, patent and trademark agreements required by the terms of the Security Agreement. (xvi) The closing (the “Closing”) of Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender Buyer or its designeecounsel may reasonably request.

Initial Closing. In consideration for each applicable Lender’s payment (a) If the Escrow Agent shall (i) be holding in escrow collected funds representing Subscription Proceeds in an amount equal to the full purchase price of its pro rata share 50,000 shares of Common Stock and (ii) have received from the Company and the Managing Placement Agent, on or before the Termination Date and the Initial Closing Date, respectively, the Facsimile Notice (as defined herein) and related Confirmation (as defined herein) described in paragraph 4(b) hereof, then the Escrow Agent shall disburse the collected funds then held in the Escrow Account (less fees of the aggregate purchase price (Escrow Agent as provided herein) to the “Company and to the Managing Placement Agent, as provided herein and subject to the provisions hereof, at the Initial Closing. As used in this Agreement, the terms "Initial Closing" and "Initial Closing Note Purchase Price”Date" shall have the meanings ascribed to such terms in Section 4(g) of the Notes to Managing Placement Agent Agreement; the Initial Closing shall be purchased by scheduled as provided therein. (b) On or before the Lenders at Termination Date, the Closing Escrow Agent shall have received Facsimile Notice (as defined below), which is set forth opposite such Lender’s name in column four (4herein) from the Company and the Managing Placement Agent that all conditions precedent to the disbursement of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender Subscription Proceeds on the Initial Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) including without limitation all of the conditions to the Closing set forth in Section 5.1 below (or such later date 9 of the Managing Placement Agent Agreement) have been fully satisfied as is mutually agreed required under the Prospectus, the Managing Placement Agent Agreement, Rule 15c2-4 and/or NASD Notices to Members 84-64 and 84-7, specifically certifying that subscriptions for not less than 50,000 shares of Common Stock have been received and accepted by the Borrower and Company on or before the Agent). On Termination Date; Confirmation (as defined herein) of such Facsimile Notice shall be delivered to the Escrow Agent on or before the Initial Closing Date, dated as of the Initial Closing Date. (c) Provided that the Escrow Agent shall have (i) each Lender shall pay its pro rata share of received and be holding in escrow collected Subscription Proceeds as required under paragraph 4(a) hereof, (ii) received the Closing Note Purchase Price to Facsimile Notice (as defined herein) required under paragraph 4(b) hereof on or before the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Termination Date and (ii) received Confirmation (as defined herein) of the Borrower shall deliver to each Lender Facsimile Notice required under paragraph 4(b) hereof on or before the Notes (Initial Closing Date, the Escrow Agent shall, on the Initial Closing Date, disburse the collected funds then held in the denominations Escrow Account as such Lender shall have requested prior follows: First, to the Closing) Escrow Agent in the amount of any fees then due and payable to such Agent (which such Lender is then purchasingshall not exceed on the Initial Closing Date the aggregate earnings, duly executed if any, on behalf funds held in the Escrow Account, determined as of the Borrower business day immediately preceding such Closing Date); Second, to the Managing Placement Agent in an amount equal to the aggregate selling commissions and registered expense allowances then due and payable to the Selected Placement Agents pursuant to the Managing Placement Agent Agreement; and Third, to the Company in the name amount of any balance then remaining in the Escrow Account. (d) If any of the conditions described in paragraphs 4(a) and 4(b) hereof shall not have been fully satisfied at the close of business on the date (Termination Date or Initial Closing Date) specified herein for such Lender or compliance, the Escrow Agent shall promptly return all Subscription Proceeds directly to subscribers, with interest thereon at its designeepassbook rate for the period held in escrow, and the escrow provided for herein shall thereupon terminate.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The obligation of the aggregate purchase price (Company hereunder to issue and sell the “Initial Notes to the Investor at the Initial Closing Note Purchase Price”) is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing the Investor with prior written notice thereof: (i) The Investor shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company. (ii) The Investor shall have delivered for the Initial Notes to be being purchased by the Lenders Investor at the Initial Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Initial Cash Purchase Price to the Borrower for Company (less the Notes amounts withheld pursuant to be issued and sold to such Lender at the ClosingSection 4(f)), by wire transfer of immediately available fundsfunds pursuant to the wire instructions provided by the Company. (iii) The Collateral Agent will have duly executed the subordination and intercreditor agreements, subordinating the obligations that the Company owes to Spring Forth Investments, LLC and the Utah Autism to the obligations of the Company to the Investor under the Transaction Documents and to the Other Investors under the Other Agreements (as more fully set forth on defined in Section 9(p)) each of the Schedule other agreements entered into in connection with the transactions contemplated by the Other Agreements (the "Subordination Agreements"). (iv) The representations and warranties of Lenders the Investor shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (ii) except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date), and the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender Investor shall have requested performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to the ClosingInitial Closing Date. (v) which such Lender is then purchasingThe Company shall have received waivers duly executed and delivered by the Required Holders (as defined in each of the Existing Notes) (the "Existing Required Holders") allowing the Company to enter into this Agreement and the other Transaction Documents and consummate the transactions contemplated hereby and thereby in the form attached hereto as Exhibit C (the "Waiver"). (vi) The Investor shall have delivered to the Company a Forbearance Agreement, duly executed on behalf of by the Borrower and registered Investor in the name of such Lender or its designeeform attached hereto as Exhibit D (the "Forbearance Agreement").

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price An initial Closing (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement purchase and the issuance sale of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders WinWin Shares shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPGodward llp, 000 Xxxx Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxxx 00000xx Xxxxx, XxxxxxxXxx Xxxxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be Xxxxxxxxxx, at 10:00 a.m., Chicago a.m. Pacific time, on the date hereof, subject to notification of satisfaction (or waiver) that is three business days following the date on which the parties have satisfied all of the conditions to the Initial Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the “Initial Closing Date”); provided, that the Initial Closing shall only occur, if at all, on such date that is chosen by PBT; and provided further, that the Initial Closing shall occur, if at all, on or prior to September 30, 2006. At the Initial Closing, PBT shall purchase, and WinWin shall issue and sell, against delivery of payment therefor, a number of WinWin Shares (ithe “Initial Closing WinWin Shares”) each Lender shall pay its pro rata share such that, following the issuance of the Initial Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the ClosingWinWin Shares, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf PBT will hold 19% of the Borrower outstanding capital stock of WinWin on an as-converted-to-common basis, and WinWin shall authorize its transfer agent to issue to PBT a certificate registered in the name of such Lender or its designeePBT, representing the Initial Closing WinWin Shares and bearing the legend set forth in Section 4(x)(vi). The purchase price for the Initial Closing WinWin Shares will be paid by PBT’s delivery to WinWin at the Initial Closing of (i) that certain original promissory note issued by WinWin to PBT and dated as of September 30, 2005 and with a principal amount of $2.5 million (the “Note”), all principal and accrued interest on which shall be canceled in exchange for a number of Initial Closing WinWin Shares equal to the quotient obtained by dividing the principal and accrued interest under the Note by the Purchase Price and, (ii) a number of fully paid and nonassessable newly issued shares of PBT Series C Preferred Stock (the “Initial Closing PBT Shares”), each with a deemed value of $5.00, which shares will have the rights, preferences and privileges as set forth in PBT’s Amended and Restated Certificate of Incorporation as in effect as of the date of this Agreement (the “PBT Charter”). In advance of the Initial Closing the PBT Board of Directors shall have authorized the issuance and sale to WinWin of the Initial Closing PBT Shares, and shall have reserved a sufficient number of shares of the common stock of PBT (the “PBT Common Stock”) for issuance upon the conversion of the Initial Closing PBT Shares.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (i) On or prior to the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following: (A) this Agreement duly executed by the Company; (B) a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate Note with a principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold equal to such Lender at the Closing, by wire transfer of immediately available fundsPurchaser’s Principal Amount, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing1 hereto, duly executed on behalf of the Borrower and registered in the name of such Lender Purchaser; (C) a Warrant registered in the name of such Purchaser; (D) a certificate of the President of the Company, dated as of the Initial Closing Date, certifying that the conditions set forth in Section 2.3(a)(ii) below have been fulfilled; (E) a certificate of the Secretary of the Company, dated as of the Initial Closing Date, certifying (a) the Operating Agreement, (b) resolutions of the Board of Directors of the Company approving the Transaction Agreements and all transactions contemplated under the Transaction Agreements, and (c) resolutions of the Members approving the Transaction Agreements and all transactions contemplated under the Transaction Agreements; (F) the Operating Agreement Amendment signed by Members holding at least 51% of the issued and outstanding units of the Company, which Members are sufficient to amend the Operating Agreement in accordance with its terms; (G) the Consent, Amendment and Termination Agreements executed by all Existing Noteholders; (H) the Intercreditor Agreement executed by the Company and all Existing Noteholders, which agreement shall automatically become effective as of the earlier of (1) the Second Closing Date and (2) June 7, 2017; (I) the Security Agreement executed by the Company, which agreement shall automatically become effective as of the earlier of (1) the Second Closing Date and (2) June 7, 2017, and any other documents related thereto which the Purchasers shall reasonably require; (J) evidence of the filed UCC-1 financing statement with the appropriate division of the Secretary of State of Delaware with respect to the Purchaser’s security interest under the Existing Security Agreement; and (K) the Management Rights Letter executed by the Company. (ii) On or its designeeprior to the Initial Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following: (A) this Agreement duly executed by the Purchaser; (B) such Purchaser’s Subscription Amount, as set forth on Schedule 1 hereto, by wire transfer to the account specified in writing by the Company; (C) a joinder to the Existing Security Agreement executed by the Purchaser (the “Security Agreement Joinder”); and (D) the Management Rights Letter executed by the Purchasers.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The initial closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing hereby (the “Closing Date”"Initial Closing") shall be take place beginning at 10:00 a.m., Chicago time, on the date hereofInitial Closing Date at the offices of Neal, Xxrber & Eisexxxxx, Xxo Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 xx at such other place or time as the parties hereto shall agree. Upon receipt by the Indenture Trustee on the Initial Closing Date of the full amount of the Owner Participant's Commitment in respect of the Units delivered on the Initial Closing Date and the Loan Participant's Commitment in respect of the Units delivered on the Initial Closing Date, the Indenture Trustee on behalf of the Owner Trustee shall, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (Sections 4.1 and 4.3 having been fulfilled to the satisfaction of the Owner Participant or such later date as is mutually agreed to waived by the Borrower and Owner Participant, pay to the Agent). On Lessee from the funds then held by it, in immediately available funds, an amount equal to the Equipment Cost for the Units delivered on the Initial Closing Date, and simultaneously therewith, (i) each Lender the Lessee shall pay its pro rata share of the Closing Note Purchase Price deliver such Units to the Borrower for the Notes to be issued and sold to such Lender at the ClosingOwner Trustee, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior Owner Trustee shall, pursuant to the Closing) which Lease, lease and deliver the Equipment delivered on the Initial Closing Date to the Lessee, and the Lessee, pursuant to the Lease, shall accept delivery of such Lender is then purchasingUnits under the Lease, duly executed on behalf such lease, delivery and acceptance of the Borrower Units under the Lease shall be conclusively evidenced by the execution and registered in delivery by the name of such Lender or its designee.Lessee and

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The initial closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing hereby (the “Closing Date”"Initial Closing") shall be take place beginning at 10:00 a.m., Chicago time, on the date hereofInitial Closing Date at the offices of Neal, Xxrbxx & Xisexxxxx, Xxo Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 xx at such other place or time as the parties hereto shall agree. Upon receipt by the Indenture Trustee on the Initial Closing Date of the full amount of the Owner Participant's Commitment in respect of the Units delivered on the Initial Closing Date and the Loan Participant's Commitment in respect of the Units delivered on the Initial Closing Date, the Indenture Trustee on behalf of the Owner Trustee shall, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (Sections 4.1 and 4.3 having been fulfilled to the satisfaction of the Owner Participant or such later date as is mutually agreed to waived by the Borrower and Owner Participant, pay to the Agent). On Lessee from the funds then held by it, in immediately available funds, an amount equal to the Equipment Cost for the Units delivered on the Initial Closing Date, and simultaneously therewith, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price Lessee shall, pursuant to the Borrower for Bill xx Sale, deliver such Units to the Notes to be issued and sold to such Lender at the ClosingOwner Trustee, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower Owner Trustee shall, pursuant to the Lease, lease and deliver the Equipment delivered on the Initial Closing Date to the Lessee, and the Lessee, pursuant to the Lease, shall accept delivery of such Units under the Lease, such lease, delivery and acceptance of the Units under the Lease shall be conclusively evidenced by the execution and delivery by the Lessee and Owner Trustee of a Lease Supplement covering the Equipment so delivered as described in Schedules 1A and 1B, (iii) the Owner Trustee shall execute and deliver to each Lender the Notes (in the denominations as Loan Participant an Equipment Note relating to such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf Lease Supplement. Each of the Borrower Lessee, the Owner Participant, the Owner Trustee, the Loan Participant and registered the Indenture Trustee hereby agree to take all actions required to be taken by it in the name of such Lender or its designeeconnection therewith and pursuant to this Section 2.3(b).

Initial Closing. In consideration (i) Upon the execution of this Agreement or at such later time or date as the parties shall agree, the Company shall issue and sell to the Purchaser and the Purchaser shall purchase $500,000 principal amount of Debentures (the "Initial Debentures") for each applicable Lender’s payment of its pro rata share of the an aggregate purchase price of $500,000. The closing of the purchase and sale of the Initial Debentures (the “"Initial Closing") shall take place at the offices of Robinson Xxxxxxxxn Xxxxxx Xrxxxxxx & Xxxxxx LLX ("Xxbinson Xxxxxxxan"), 0000 Avenxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Xxx xxxe of the Initial Closing Note Purchase Price”is hereinafter referred to as the "Initial Closing Date." (ii) At the Initial Closing the parties shall deliver or shall cause to be delivered the following: (A) the Company shall deliver (1) the Initial Debentures, registered in the name of the Purchaser, (2) a Common Stock purchase warrant in the form of Exhibit C (the "Purchaser Warrant"), registered in the name of the Purchaser, entitling the holder thereof to acquire from time to time on the terms set forth therein, up to 75,000 shares of Common Stock for an exercise price (subject to adjustment as set forth therein) of $.50 per share, (3) against exchange of the Notes to be purchased by the Lenders at the Closing Opportunity Warrants (as defined below), which is a Common Stock purchase warrant in the form of Exhibit C, registered in the name of JNC Opportunity Fund Ltd. ("Opportunity") (such warrant, together with the Purchaser Warrant, the "Warrants"), entitling the holder thereof to acquire from time to time on the terms set forth opposite such Lender’s name in column four therein, up to 500,000 shares of Common Stock for an exercise price (subject to adjustment as set forth therein) of $.50 per share, (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date an executed Amendment (as defined belowin Section 3.15), and each applicable Lender severally(5) all other executed instruments, but not jointlyConvertible Debenture Purchase Agreement agreements and certificates as are required to be delivered by the Company at the Initial Closing, agrees to purchase from including without limitation, an executed Registration Rights Agreement, dated as of the Borrower on the Initial Closing Date, a Notebetween the Purchaser and the Company in the form of Exhibit B (the "Registration Rights Agreement"), and the Irrevocable Transfer Agent Instructions, in substantially the form attached hereto as of Exhibit AD, delivered to and in acknowledged by the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing Company's transfer agent (the “Closing”"Transfer Agent Instructions"); (B) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders Purchaser shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing deliver (the “Closing Date”1) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, $500,000 by wire transfer of immediately available funds, as more fully set forth on funds to an account designated in writing by the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as Company for such Lender shall have requested purpose prior to the Initial Closing, (2) which such Lender is then purchasingall other executed instruments, duly agreements and certificates as are required to be delivered by the Purchaser at the Initial Closing, including without limitation, an executed on behalf of the Borrower Registration Rights Agreement and registered in the name of such Lender or its designeeexecuted Amendment.

Initial Closing. In consideration for The obligation of each applicable Lender’s payment of its pro rata share of Buyer hereunder to purchase the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders Initial Shares at the Initial Closing (as defined below)is subject to the satisfaction, which is set forth opposite such Lender’s name in column four (4) of at or before the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Initial Closing Date, a Noteof each of the following conditions, provided that these conditions may be waived with respect to solely to such Buyer at any time in its sole discretion: i. ConnectClearly and NCT shall have executed this Agreement and delivered same to Buyers. ii. NCT and ConnectClearly shall have executed the Registration Rights Agreement and delivered same to the Buyers. iii. NCT Common Stock shall be authorized for quotation on the OTC Bulletin Board, over-the-counter market, AMEX, the NASDAQ Small Cap or National Market or The New York Stock Exchange, Inc., and trading in NCT Common Stock shall not have been suspended for any reason. iv. The representations and warranties of ConnectClearly shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 4 above, in substantially which case, such representations and warranties shall be true and correct without further qualification) as of the form attached hereto date when made and as Exhibit Aof the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and ConnectClearly shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by ConnectClearly at or prior to the Initial Closing Date. The Buyers shall have received a certificate, executed by the President or Chief Financial Officer of ConnectClearly, dated as of the Initial Closing Date, to the foregoing effect. v. The representations and warranties of NCT shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 5 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and NCT shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by ConnectClearly at or prior to the Initial Closing Date. The Buyer shall have received a certificate, executed by the Chief Financial Officer of NCT, dated as of the Initial Closing Date, to the foregoing effect. vi. Since the date of the financial statements included in NCT's Quarterly Report on Form 10-Q or Annual Report on Form 10-K, whichever is more recent, last filed prior to the date of this Agreement, no event which had a Material Adverse Effect, an NCT Material Adverse Effect and/or a material adverse change in the aggregate principal amount as is set forth opposite such Lender’s name financial condition of NCT shall have occurred (for purposes hereof changes in column four (4) the market price of the Schedule NCT Common Stock may be considered as a factor in determining whether there has occurred an event which has had a Material Adverse Effect or whether a material adverse change has occurred). vii. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of Lenders attached hereto. The closing (competent jurisdiction which prohibits the “Closing”) consummation of any of the transactions contemplated by this Agreement and Agreement, the issuance Warrants or the Registration Rights Agreement. viii. The Buyer shall have received the opinion of NCT's counsel, dated as of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Initial Closing Date, in form and substance reasonably satisfactory to the Buyers and in substantially the form of Exhibit 3 attached hereto. ix. ConnectClearly shall have executed and delivered to the Buyer (or the Buyer's designee) (i) each Lender the Initial ConnectClearly Common Stock Certificates (in such denominations as the Buyer shall pay its pro rata share of the Closing Note Purchase Price to the Borrower request) for the Notes to be issued and sold to such Lender Initial Shares being purchased by the Buyers at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Initial Closing and (ii) warrant certificate(s) representing the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingInitial Warrants, duly executed on behalf of the Borrower and registered in the name of such Lender Buyer, in form satisfactory to the Buyer. x. On or its designeeprior to the Initial Closing Date, ConnectClearly shall have duly reserved the number of Exchange Shares and Warrant Shares required by this Agreement to be reserved for issuance upon exchange of the Shares and upon exercise of the Warrants. xi. NCT's Irrevocable Transfer Agent Instructions, in form and substance satisfactory to the Buyers, shall have been delivered to and acknowledged in writing by NCT's transfer agent.

Initial Closing. In consideration On the Initial Closing Date, (i) each Buyer (A) shall pay its respective Purchase Price to the Company by wire transfer of immediately available funds in accordance with the Company’s written wire instructions, (B) holding Notes shall surrender to the Company for each applicable Lender’s payment of its pro rata share of conversion and cancellation in accordance with the Note Conversion the Notes in the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is principal amount set forth opposite such LenderBuyer’s name in column four (2) of the Conversion Schedule attached hereto (the “Conversion Schedule”), and (C) shall surrender to the Company for exchange and cancellation pursuant to the Warrant Exchange, the 2005 Warrants, the Note Warrants and the March Warrants in the respective amounts set forth opposite such Buyer’s name in columns (6), (7) and (8) of the Conversion Schedule and (ii) the Company shall deliver to each Buyer (A) one or more stock certificates, evidencing the number of Shares being purchased by such Buyer as set forth opposite such Buyer’s name in column (3) of the Schedule of Buyers, (B) one or more New Warrants exercisable for the number of New Warrant Shares set forth opposite such Buyer’s name in column (4) of the Schedule of Lenders attached heretoBuyers, (C) one or more stock certificates, evidencing the Borrower shall issue and sell number of Conversion Shares being issued to such Lender on the Closing Date (Buyer as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such LenderBuyer’s name in column four (43) of the Schedule Conversion Schedule, (D) one or more Exchange Warrants exercisable for the number of Lenders attached hereto. The closing Exchange Warrant Shares set forth opposite such Buyer’s name in column (the “Closing”9) of the transactions contemplated by this Agreement Conversion Schedule, and (E) one or more Option Exchange Warrants exercisable for the issuance number of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing Option Exchange Warrant Shares set forth opposite such Buyer’s name in column (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver5) of the conditions to the Closing set forth Conversion Schedule, in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, all cases duly executed on behalf of the Borrower Company and registered in the name of such Lender Buyer, or its designeesuch Buyer’s nominee.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of (a) The Initial Closing shall take place (i) on a Business Day on or after the aggregate purchase price date specified by the Class A Purchaser in a notice to the Company and the Class B Purchasers (the “Closing Note Purchase PriceNotice of Initial Closing”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which Business Day shall be (A) no earlier than the date that is ten (10) Business Days after delivery to the Class B Purchasers of the Notice of Initial Closing (and provided that the Class A Purchaser shall have the right, upon at least two (2) Business Days' prior notice to the Class B Purchaser Representative, to defer the Initial Closing Date to a date later than the date specificed in the Notice of Initial Closing) and (B) no later than the Initial Closing Outside Date, or (ii) at such other time and place as the Purchasers may agree, subject, in each case, to the satisfaction or waiver at or prior to the Initial Closing of the conditions set forth opposite in Section 2.03, Section 2.04, Section 2.05, and Section 2.06. (b) The Parties agree that the Class A Purchaser shall be required to deliver the Notice of Initial Closing no later than ten (10) Business Days prior to the Initial Closing Outside Date, and to the extent such Lender’s name in column four (4) Notice of Initial Closing has not been delivered by such date, such Notice of Initial Closing shall be deemed to have been given for the Initial Class B Units Sale, and the Initial Closing shall occur on the Initial Closing Outside Date, subject to the satisfaction or waiver at or prior to the Initial Closing of the Schedule of Lenders attached heretoconditions set forth in Section 2.03, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below)Section 2.04, Section 2.05, and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Section 2.06. (c) The Initial Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at One Xxxxxx Xxxxxx Xxxxxxxx LLPSquare, 000 Xxxx Xxxxxx XxxxxxWilmington, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below Delaware (or such later date other location as is mutually agreed to by the Borrower Company and the AgentPurchasers). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (i) Subject to the satisfaction or waiver of the conditions set forth in Section 5.01 and Section 5.02 of this Agreement, and in reliance upon the representations and warranties hereinafter set forth, the purchase and sale of: (A) $1,686,000,000 aggregate purchase price principal amount of Springing Lien Notes; (B) 10,000,000 shares of the Purchased Common Stock; and (C) the ABS Assets (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Xxxxxx Xxxxxx Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP, 000 Xxx Xxx Xxxx Xxxxxx XxxxxxXxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXX, Xxxxxxxx 00000. The date concurrently with the execution and time delivery of this Agreement by the Closing parties (the date that the Initial Closing occurs, the “Initial Closing Date”). (ii) shall be 10:00 a.m., Chicago time, on At the date hereof, subject Initial Closing: (A) the Company will deliver to notification Purchaser (1) certificates for the shares of satisfaction (or waiver) of Common Stock in the conditions to the Closing amounts set forth in the Section 5.1 below 2.01(a)(i)(B) registered in the name of Purchaser; (2) $1,686,000,000 of executed Springing Lien Notes which shall be reflected in one or more global notes representing the Springing Lien Notes and held by The Depository Trust Corporation or its nominee (or such later date as is mutually agreed to by a custodian on its behalf); (3) an executed copy of the Borrower ABS Purchase Agreement, the Registration Rights Agreement, the Springing Lien Notes Indenture and the Agent). On Order Handling Agreement; (4) the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, Commitment Fee by wire transfer of immediately available funds, as more fully funds to the accounts set forth on the Purchaser Schedule of Lenders 2.01(a); and (ii5) the Borrower shall Existing Notes Accrued Interest by wire transfer of immediately available funds to the accounts set forth on Purchaser Schedule 2.01(a); (B) Purchaser, in full payment for such shares of the Purchased Common Stock and such Springing Lien Notes, will deliver (1) the Initial Consideration by wire transfer of immediately available funds to the accounts set forth on Company Disclosure Schedule 2.01(a), and (2) the Existing Notes Consideration; (C) Purchaser will deliver to the Company an executed copy of the Parent Guaranty and an executed counterpart to the Registration Rights Agreement, the ABS Purchase Agreement and the Order Handling Agreement; (D) the Company will contribute the full amount of the Initial Consideration to E*Trade Bank and $50,000,000 of any other consideration received with respect to the Springing Lien Notes sold contemporaneously herewith to any Person other than Purchaser; (E) following delivery to Purchaser of the written certification of the Company’s Chief Financial Officer that the actions contemplated by preceding clause (D) have been completed, E*Trade Bank, E*Trade Global Asset Management, Inc. and Purchaser will consummate the purchase and sale of the ABS Assets pursuant to the ABS Purchase Agreement; and (F) each Lender party shall take or cause to happen such other actions, and shall execute and deliver such other instruments or documents, as shall be required under Section 5.01 and Section 5.02. (iii) Notwithstanding any other provision of this Agreement, after the Notes (Initial Closing Date in consideration, in part, of the denominations as such Lender payments made by Purchaser at the Initial Closing, Purchaser shall have requested prior the right to the Closing) which such Lender is then purchasing, duly executed on behalf receive an additional 20,741,901 shares of the Borrower and Purchased Common Stock, which shares of Purchased Common Stock shall be issued by the Company to Purchaser upon termination or expiration of any applicable waiting periods with respect to such issuance under the HSR Act. Immediately upon expiration or notice of termination of any such applicable waiting period, the Company shall issue such additional shares to Purchaser registered in the name of Purchaser. The Company shall not be required to issue such Lender additional shares at any time that there shall be in effect any law, rule or regulation or any order, decree or injunction of a court or agency of competent jurisdiction which enjoins or prohibits consummation of such issuance. Notwithstanding the foregoing, in the event Purchaser determines that the issuance of all of such shares of Purchased Common Stock under this Section 2.01(a)(iii) will or may give rise to regulatory concerns for Purchaser or its designeeAffiliates, Purchaser may elect to receive a fewer number of shares of Purchased Common Stock otherwise issuable pursuant to this 2.01(a)(iii), and the number of shares not issued to Purchaser as a result of such election shall be issued to Purchaser at the time shares of Purchased Common Stock are issued to Purchaser pursuant to Section 2.01(b)(i)(A) at the Final Closing or pursuant to Section 2.01(b)(iii), as applicable. Notwithstanding the foregoing or anything to the contrary herein, until the earlier of the Final Closing or the date shares of Purchased Common Stock are issuable to Purchaser pursuant to Section 2.01(b)(iii), Purchaser shall not have the right to receive any shares of Common Stock to the extent that, after receiving such shares, Purchaser (together with its Affiliates) would beneficially own in excess of 9.90% of the number of shares of Common Stock outstanding immediately after giving effect to such issuance (the “Issuance Limitation”). For purposes of this Section, beneficial ownership shall be calculated in accordance with Rule 13(d)(3) of the Exchange Act. By not less than sixty-one (61) days’ prior written notice to the Company, Purchaser may, at its election, increase or decrease the Issuance Limitation to any other percentage not in excess of 9.90% specified in such notice, and the Issuance Limitation shall continue to apply until such sixty-first day (or such later date, as determined by Purchaser, as may be specified in such notice). (iv) If the Initial Closing is consummated, the conditions to the Initial Closing set forth in Sections 5.01 and 5.02 shall be deemed to have been satisfied or waived, and neither party shall assert the failure of any such condition as the basis for failing to consummate the Final Closing or as the basis for terminating this Agreement.

Initial Closing. (i) In consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) sale, transfer, assignment, conveyance and delivery by Seller of the Notes Purchased Assets (other than the Delayed Purchased Assets) to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit ABuyer, and in addition to assuming the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes Assumed Liabilities, Buyer shall pay to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur Seller at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing DateInitial Closing, (ix) each Lender shall pay its pro rata share Seven Million Dollars ($7,000,000.00) plus (y) the net book value of (A) the Closing Note Purchase Price to Principal Equipment and (B) the Borrower for Little Rock Premise (collectively, the Notes to "INITIAL PURCHASED ASSETS") (as may be issued and sold to such Lender at adjusted in accordance with this Section 2.3(a), the Closing, "INITIAL PURCHASE PRICE") in cash by wire transfer of immediately available fundsfunds to an account designated by Seller's written instructions to Buyer at least two (2) Business Days prior to Initial Closing. The net book value of the Initial Purchased Assets shall be determined in accordance with this Section 2.3(a). (ii) At least ten (10) Business Days prior to the Initial Closing, Seller will in good faith prepare and deliver to Buyer a schedule (the "INITIAL PURCHASED ASSETS SCHEDULE") setting forth the net book value of the Initial Purchased Assets as more fully of the Initial Closing Date. The Initial Purchased Assets Schedule shall be prepared in a manner consistent with the preparation of the Initial Balance Sheet. During such ten (10) day period, Seller and Buyer shall jointly conduct a physical inventory of the Principal Equipment. Seller shall provide Buyer full access during reasonable business hours to the Denver Premise and the Little Rock Premise and the relevant records necessary to review the Initial Purchased Assets Schedule. To the extent Buyer agrees with Seller's calculation of the net book value of the Initial Purchased Assets as set forth in the Initial Purchased Assets Schedule, or if Seller and Buyer agree on a different net book value amount, Buyer shall pay Seller on the Initial Closing Date such agreed upon amount. To the extent Buyer and Seller cannot reasonably agree on the net book value of the Initial Purchased Assets by the day immediately prior to the Initial Closing Date, Buyer shall nevertheless be obligated to pay Seller on the Initial Closing Date the net book value amount set forth in the Initial Purchased Assets Schedule, subject to the audit rights set forth in Section 2.3(a)(iii) below. (iii) To the extent Buyer and Seller cannot reasonably agree on the net book value of the Initial Purchased Assets by the Initial Closing Date, promptly following the Initial Closing Date, Seller's external auditors ("SELLER'S AUDITOR") and Buyer's external auditors ("BUYER'S AUDITOR") shall select a third auditor from Xxxxxx Xxxxxxxx LLP's New York office (or, if unavailable, another national certified public accounting firm reasonably acceptable to each of Seller and Buyer) (the "THIRD AUDITOR") who shall definitively decide the net book value of the Initial Purchased Assets. The Third Auditor will be given full access by Buyer, during regular business hours, to the relevant records and other work papers necessary to review the Initial Purchased Assets Schedule. Buyer and Seller shall each pay one-half of the fee charged by the Third Auditor, and each shall be solely responsible for any fees charged by auditors of such party. (iv) An amount equal to the net book value of the Initial Purchased Assets set forth on the Initial Purchased Assets Schedule of Lenders and (ii) shall be referred to as the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior "INITIAL PURCHASED ASSETS NET BOOK VALUE." An amount equal to the Closing) which such Lender is then purchasing, duly executed on behalf net book value of the Borrower Initial Purchased Assets as determined by the Third Auditor shall be referred to as the "INITIAL PURCHASED ASSETS NET BOOK VALUE OF THE THIRD AUDITOR." If the Initial Purchased Assets Net Book Value is less than the Initial Purchased Assets Net Book Value of the Third Auditor, Buyer shall pay the difference between such amounts to Seller in cash by wire transfer of immediately available funds to an account designated by Seller's written instructions to Buyer, and registered if the Initial Purchased Assets Net Book Value is greater than the Initial Purchased Assets Net Book Value of the Third Auditor, then Seller shall pay the difference between such amounts to Buyer in cash by wire transfer of immediately available funds to an account designated by Buyer's written instructions to Seller. Any such payment shall be made on or before 60 calendar days after the name of Initial Closing Date, and any such Lender payment shall be considered an addition or its designeereduction, as applicable, to the Purchase Price.

Initial Closing. In consideration for each applicable Lender’s payment (A) Subject to the terms of its pro rata share this Agreement, the closing of the aggregate purchase price Initial Purchase (the “Closing Note Purchase Price”"INITIAL CLOSING") shall occur on or before the date that is five (5) days after the date that the last of the Notes to be purchased by the Lenders at the Closing (as defined below), which is conditions set forth opposite in SECTIONS 7 and 8 have been satisfied, or at such Lender’s name in column four (4) of the Schedule of Lenders attached heretoother place, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower Buyer and the AgentSellers (the "INITIAL CLOSING DATE"). On . (B) At the Closing Date, Initial Closing: (i) each Lender Seller shall pay its pro rata share deliver the certificates representing the Initial Shares, together with duly executed Assignments Separate from Certificate, to American Stock Transfer and Trust Company, the Company's transfer agent (the "TRANSFER AGENT"), together with such other documents requested by the Transfer Agent (the "TRANSFER INSTRUCTIONS") as may be necessary for the transfer of record ownership of the Closing Note Initial Shares to the Buyer on the stock records of the Company; (ii) upon the Buyer's receipt of confirmation reasonably satisfactory to the Buyer from the Transfer Agent that the Transfer Agent is prepared to transfer record ownership of the Initial Shares to the Buyer in accordance with clause (i) of this paragraph, the Buyer shall deliver the Initial Purchase Price in immediately available funds to each of the Borrower for Sellers in the Notes to be issued and sold to such Lender at the Closing, respective amounts shown on Schedule 1 hereto by wire transfer of immediately available funds, as more fully set forth on to an account designated by such Seller to the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (Buyer in the denominations as such Lender shall have requested writing at least two business days prior to the ClosingInitial Closing Date; and (iii) which such Lender is then purchasing, duly executed on behalf upon the Buyer's delivery of the Borrower Initial Purchase Price and registered in accordance with the name Transfer Instructions, the Transfer Agent shall take such action as may be reasonably necessary to transfer record ownership of such Lender or its designeethe Initial Shares to the Buyer on the stock transfer records of the Company and shall cause to be delivered to the Buyer certificates representing the Initial Shares.

Initial Closing. In consideration for each applicable Lender’s payment On the Initial Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of its pro rata share of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased this Agreement by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached parties hereto, the Borrower shall issue and sell Company agrees to such Lender on the Closing Date (as defined below)sell, and each applicable Lender severallyof the Purchasers, but severally and not jointly, agrees to purchase from Shares and Warrants for an aggregate purchase price of up to $7,500,000 but not less than $4,000,000 (such purchase and sale being the Borrower “Initial Closing”). Prior to the Initial Closing, each Purchaser shall deliver to the Escrow Agent such Purchaser’s Initial Closing Subscription Amount as set forth on the Closing Date, signature page hereto executed by such Purchaser by a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, such amount to be held in a non-interest-bearing escrow account, and the Company shall, on the Initial Closing Date, deliver to each Purchaser a certificate representing the number of Shares and Warrants purchased by such Purchaser at the Initial Closing as more fully determined pursuant to Section 2.2(a), subject to the restrictions on delivery of Shares to GCP IV LLC as set forth in the Right to Shares Letter Agreement of even date, a copy of which is attached hereto as Exhibit “C”. The Company and each Purchaser shall also deliver the other items set forth in Section 2.2 deliverable at the Initial Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Initial Closing shall occur at the offices of G&M or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, the Initial Closing Date shall occur on or before February 22, 2013 (such outside date, “Termination Date”). If the Schedule of Lenders Initial Closing is not held on or before the Termination Date, the Escrow Agent shall cause (i) all subscription documents executed by the Company or a Purchaser to be returned to the Company or such Purchaser, as applicable, and (ii) the Borrower shall deliver each Subscription Amount to each Lender the Notes (in the denominations as such Lender shall have requested prior be returned, without interest or deduction to the Closing) which Purchaser who delivered such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSubscription Amount.

Initial Closing. In consideration for each applicable Lender’s Commencing on the Initial Closing, the Authority shall 18 pay the Initial Consideration in U.S. Dollars in ten equal annual installments of Five Million 19 Five Hundred Thousand Dollars ($5,500,000) (each, an “Installment Payment”) plus interest 20 if and when due. The first payment of its pro rata share of the aggregate purchase price Five Million Five Hundred Thousand Dollars 21 (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”$5,500,000) shall be 10:00 a.m., Chicago time, paid at the Initial Closing. Each subsequent Installment Payment shall be 22 made on the date hereof, subject to notification of satisfaction (or waiver) Anniversary Date of the conditions to the Initial Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, shall consist of (i) each Lender shall pay its pro rata share the amount of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing23 Installment Payment then due, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and plus (ii) the Borrower shall deliver to each Lender Interest Rate multiplied by the Notes amount of the Initial 24 Consideration that had not yet been paid as of the beginning of the prior year (in i.e., the denominations Initial 25 Consideration minus the total of Installment Payments that were actually paid through the prior 26 year). The Parties also intend that so long as such Lender shall all of the Navy Real Property has been conveyed, 27 all of the Initial Consideration and applicable interest will have requested prior become due and payable by the 28 expiration of the Initial Consideration Term, subject to the Closing) which such Lender is then purchasingcredit against Initial Consideration 29 pursuant to Section 4.2.5 hereof. Notwithstanding the foregoing, duly executed on behalf if at any time Navy conveys 30 any Parcel to a third party to the extent permitted under Section 3.8.4 hereof, the total amount 31 of the Borrower and registered in Initial Consideration shall be reduced by the name amount of consideration received by the 32 Navy from the sale or transfer of such Lender Parcel up to the amount of the Initial Consideration, and 33 any interest payable thereon shall be on the reduced amount of Initial Consideration. Authority 34 shall also be entitled to a credit against any future Installment Payment (and if insufficient 35 Installment Payments remain to fully use the credit, against future payments of Additional 36 Consideration) equal to the interest paid by Authority to Navy from the Initial Closing through 37 the date of the third-party sale calculated on the amount of consideration received by the Navy 38 from the sale or its designee.transfer of the applicable Parcel. If at the time of the third party sale, one or 39 more Installment Payments remain due, the Installment Payments shall continue until the Navy 40 has been paid an amount equal to the Initial Consideration less the amount of the third party 41 sale. If the conveyance to a third party occurs after Authority has already paid the Navy 42 Installment Payments in an amount that equals more than the Initial Consideration less 43 amounts received by the Navy from the third party sale, then no further Installment Payments 44 shall be due, and Authority shall be entitled to credit the amount of the Authority’s 45 overpayment against future payments of Additional Consideration that may become due under 46 Section 4.3 hereof. Without limiting the foregoing, if this Agreement terminates as to any 1 Parcel in accordance with Section 3.8.4 hereof, then such termination shall also be treated as a 2 Redesign Trigger Event under Section 4.2.3 hereof. 3

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share of At the aggregate purchase price Initial Closing, the Buyer shall deliver to the Sellers: (i) an amount in cash (the “Initial Closing Note Cash Payment”) equal to (A) the Initial Closing Purchase Price”, minus (B) the amount of the Notes to be purchased by Estimated Initial Closing Net Working Capital Deficit, if any, plus (C) the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) amount of the Schedule of Lenders attached heretoEstimated Initial Closing Net Working Capital Surplus, if any, minus (D) the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing Estimated Initial Closing Other Third-Party Brand Deficit, if any, plus (E) the “Closing”) amount of the transactions contemplated by this Agreement and Estimated Initial Closing Other Third-Party Brand Surplus, if any, minus (F) the issuance amount of the Notes to be issued on Estimated Initial Closing DP Deficit, if any, plus (G) the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time amount of the Estimated Initial Closing DP Surplus, if any, minus (H) the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) amount of the conditions to Estimated Initial Closing DP COGS Adjustment Deficit, if any, plus (I) the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share amount of the Estimated Initial Closing Note Purchase Price to DP COGS Adjustment Surplus, if any, minus (J) the Borrower for amount of the Notes to be issued Estimated Initial Closing Residual Transferred Assets Deficit, if any, plus (K) the amount of the Estimated Initial Closing Residual Transferred Assets Surplus, if any, minus (L) the amount of the Estimated Initial Closing Other Assets and sold to such Lender at Liabilities Deficit, if any, plus (M) the Closingamount of the Estimated Initial Closing Other Assets and Liabilities Surplus, if any, minus (N) the Estimated Initial Closing Retained Assets Amount, plus (O) the Estimated Initial Closing Retained Liabilities Amount, by wire transfer of in immediately available funds, to an account or accounts as more fully set forth on directed by the Schedule of Lenders and Sellers, provided that the Sellers will designate such account or accounts no later than three (3) Business Days prior to the anticipated Initial Closing Date; (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasingInitial Closing Xxxx of Sale, Assignment and Assumption Agreement, duly executed on behalf by the Buyer; (iii) with respect to each Leased Real Property included within the Initial Closing Transferred Assets, an Assignment and Assumption of Lease, duly executed by the Borrower Buyer and, if necessary, the Buyer’s signature shall be witnessed and/or notarized; and (iv) the other documents and registered in the name of such Lender or its designeecertificates required to be delivered pursuant to Section 7.01(b).

Initial Closing. In consideration for each applicable Lender’s payment Subject to the terms and conditions of its pro rata share this Agreement, the initial closing of the aggregate purchase price Transaction (the “Closing Note Purchase Price”"Initial Closing") of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPGoulston & Storrs, P.C., 000 Xxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000Xxxxxx, XxxxxxxXxxxxxxxxxxxx at 10:00 A.M., Xxxxxxxx 00000for and with respect to the Interests and each Shopping Center as to which an Acquisition Agreement shall have been executed and delivered prior to the Cut-Off Date on a date specified in the Initial Closing Date Notice, which Initial Closing Date shall be not less than 15 days nor more than 30 days following delivery of the Initial Closing Date Notice to the Buyer, but in no event shall the Initial Closing take place later than August 23, 1999 subject to extension as provided in this Section below (the day on which the Initial Closing takes place shall be referred to herein as the "Initial Closing Date") and the closing for and with respect to the sale of the Interests shall occur concurrently therewith. The date and time Initial Closing Date may be extended for a period of up to sixty (60) days in order to satisfy any closing conditions under an applicable Acquisition Agreement or this Agreement so that a simultaneous closing of the Closing Interests and at least all of the Phase I Shopping Centers occurs (the “"Outside Initial Closing Date”") shall be 10:00 a.m.or so that, Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Outside Initial Closing Date, the conditions provided in Section 8.01(i) may be met and satisfied. The Outside Initial Closing Date may be extended by Seller for a period of up to thirty (i30) each additional days if required in order to obtain a Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, Consent (as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (defined in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeform Contribution Agreement attached hereto.)

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (a) The closing of the aggregate purchase price and sale of each Purchaser’s Initial Funded Shares (the “Closing Note Purchase PriceInitial Closing”) shall occur at 10:00 a.m., local time, on the date (or such later date) agreed to by the Corporation and the Purchasers· after notification of satisfaction (or, where permissible, waiver) of the Notes conditions to the Initial Closing set forth in Section 2 below, other than those conditions that by their nature are to be purchased by the Lenders satisfied at the Closing Initial Closing, but subject to the satisfaction (as defined below)or, which is set forth opposite such Lender’s name in column four (4where permissible, waiver) of the Schedule of Lenders attached heretothose conditions, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx 0000 Xxxxxx, Xxxxx 0000, XxxxxxxXxxxxx Xxxx, Xxxxxxxx 00000, or at such other location as mutually agreed upon by the parties hereto. The date and time of the Initial Closing (is referred to herein as the “Initial Closing Date”.” The Initial Closing shall occur contemporaneously with the “Closing” under each Other Investor’s Other Stock Purchase Agreement. (b) shall be 10:00 a.m., Chicago time, on Subject to the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Initial Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by 2 below, at the Borrower and the Agent). On the Closing DateInitial Closing, (i) each Lender Purchaser shall pay its pro rata share of the Closing Note Purchase Price deliver to the Borrower for the Notes to be issued and sold to such Lender at the Closing, Corporation by wire transfer of immediately available funds, as more fully funds to the account set forth on Schedule 1.3(b) the Schedule amount set forth on such Purchaser’s signature page hereto as such Purchaser’s “Initial Closing Amount” (such Purchaser’s “Initial Closing Amount”), which is the product obtained by multiplying (x) the number of Lenders such Purchaser’s Initial Funded Shares as set forth on such Purchaser’s signature page hereto by (y) $12.00, and (ii) the Borrower Corporation shall deliver to each Lender Purchaser one or more certificates bearing the Notes appropriate legends herein provided for and free and clear of all liens (in the denominations as other than restrictions on transfer imposed by applicable securities laws) representing such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeePurchaser’s Initial Funded Shares.

Initial Closing. In consideration The Initial Closing of the transaction contemplated hereby shall occur at the offices of TroyGould PC, 1000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000-0000 at such time as both Buyer and Seller have provided to Wxxxxxx X. Xxxxx, Esq. (“Escrow Agent”), acting on behalf of the Company: (i) the certificates for the Shares, (ii) fully executed copies of this Agreement, (iii) assignment and Stock Powers for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (Initial Closing and the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Second Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), each with a medallion guarantee and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, generally in substantially the form attached hereto as Exhibit A, and in 2), (iv) the aggregate principal amount as is set forth opposite such Lender’s name in column four initial Purchase Price of $573,552.00, (4v) the fully executed Escrow Agreement, (vi) the fully executed Letter of the Schedule of Lenders attached hereto. The closing Credit, (the “Closing”vii) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing a certificate (the “Closing DateCertificate”) shall be 10:00 a.m.executed by Seller and Buyer (and by the sellers and the Buyer in a related transaction (the “Txxxx Transaction”) in a form satisfactory to the Company) authorizing the Company to disburse the proceeds and documents from the Initial Closing, Chicago timeand (viii) any other documents necessary to complete the transaction and the Txxxx Transaction simultaneously (including, on without limitation, the date hereofRelated Agreement, subject to notification releases and resignations of satisfaction (or waiver) Jxxx Xxxxxxxxx and Jxxx Xxxxx as officers and directors of the conditions Company and from any other positions they hold with respect to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the AgentCompany). On the The Initial Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note transaction contemplated in this Agreement is contingent upon the simultaneous closing of a similar transaction defined above as the “Txxxx Transaction” including the Buyer and (as sellers) Jxxx Xxxxx and Cxxxxxx Company in accordance with the terms of a stock purchase agreement therefor. Upon the Initial Closing, the Company shall: (A) Complete the Txxxx Transaction as described in the documents defining the Txxxx Transaction; (B) Deliver the initial Purchase Price to the Borrower Seller pursuant to instructions received from the Seller; (C) Deliver the certificate(s) for the Notes Shares to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of the Buyer following the Initial Closing together with the assignment and stock power relating thereto to the transfer agent for transfer on the books of the Company and issuance and delivery of a certificate to the Purchaser; and (D) Deliver the remaining certificates and medallion-guaranteed assignment and stock powers, and the Letter of Credit to the Escrow Agent named in the Escrow Agreement. (E) Deliver the remaining documents to the Buyer or the Seller as appropriate. (F) File a Form 8-K with the Securities and Exchange Commission announcing the completion of the transaction and the resignations of Messrs. Alexander and Txxxx and such Lender or other matters as the Company and its designeecounsel determine appropriate.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The completion of the aggregate purchase price and sale of the Initial Shares and Initial Warrants pursuant to Section 1.1 (the “Closing Note Purchase PriceInitial Closing”) shall take place at the offices of Pillsbury Winthrop LLP, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, at 8:00 A.M., Palo Alto time, on the third business day following the date on which the last to be fulfilled or waived of the Notes conditions set forth in Section 5 and Section 6 pertaining to the Initial Closing (other than those conditions that by their nature can only be fulfilled at the Initial Closing) shall have been fulfilled or waived (by each of the parties hereto), or such other place and time to be purchased mutually agreed upon by the Lenders Company and the Investors. Subject to satisfaction or waiver of the conditions set forth in Section 5 and 6 hereof, at the Initial Closing, the Investors identified on the Schedule of Investors as participants in the Initial Closing (as defined below), which is the “Initial Closing Investors”) shall purchase the number of Initial Shares and Initial Warrants set forth opposite such Lender’s name in column four (4) of Investors’ names on the Schedule of Lenders attached heretoInvestors. Aggregate Initial Shares to be sold at the Initial Closing shall not exceed 19.9% of the number of shares of Company Common Stock issued and outstanding as of the date of this Agreement. Funds shall be released to the Company from the Escrow on behalf of the Initial Closing Investors as payment for the Initial Shares and Initial Warrants as provided in the Escrow Agreement. Upon receipt of payment therefor, the Borrower Company shall issue and sell deliver to such Lender on each Initial Closing Investor one or more stock certificates representing the Closing Date (as defined below)number of Initial Shares, and each applicable Lender severallyan Initial Warrant representing the number of Warrant Shares, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such LenderInvestor’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Investors, each such certificate and (ii) the Borrower shall deliver Initial Warrant to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and be registered in the name of the Investor or, if so indicated on the Stock Certificate and Warrant Questionnaire attached hereto as Exhibit D-1 (the “Stock Certificate and Warrant Questionnaire”), in the name of a nominee designated by such Lender or its designeeInvestor.

Initial Closing. In consideration for each applicable Lender’s payment Simultaneously with the execution and delivery of its pro rata share of the aggregate purchase price this Agreement (the “Closing Note Purchase PriceInitial Closing”) ), the purchase and sale of the B Notes hereunder shall take place at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m., New York time, or at such other time or place as the Buyer and the ICI Parties may agree. At the Initial Closing: (a) the Buyer is delivering to ICI Finance the B Note Initial Payment in immediately available funds by wire transfer to the ICI Bank Account; (i) the Buyer and the Secured Parties are entering into the Pledge Agreement, (ii) the Buyer is executing any other Note Security Documents so as to provide the Secured Parties with a valid perfected first priority security interest in the Collateral (including a financing statement under the Uniform Commercial Code in the form attached as Exhibit B hereto), (iii) the Buyer is delivering to ICI Finance on behalf of the Secured Parties the single authenticated note evidencing the B Notes to be purchased held pursuant to the terms and conditions of the Pledge Agreement and (iv) ICI Finance and the Buyer are executing a cross-receipt acknowledging (A) receipt by ICI Finance of the B Note Initial Payment from the Buyer and (B) receipt by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) Buyer of the Schedule single authenticated note evidencing the B Notes; (c) ICI Finance is delivering to the Buyer duly executed instruments of Lenders attached heretotransfer and any other documents that are necessary, in the reasonable judgment of the Buyer, to transfer to the Buyer title to the B Notes and all rights and benefits incidental to the ownership thereof under the B Notes and the B Note Indenture, free and clear of any Liens, except for any Lien arising under the terms of the Pledge Agreement and the other Note Security Documents. Upon the consummation of the Initial Closing, the Borrower Buyer shall issue be entitled to all the rights and sell subject to such Lender on all the Closing Date obligations pursuant to and in accordance with the B Notes and the B Note Indenture, subject to this Agreement and the Note Security Documents and (as defined below), iii) ICI Finance and each applicable Lender severally, but not jointly, agrees to purchase from ICI Americas are filing a financing statement under the Borrower on the Closing Date, a Note, Uniform Commercial Code in substantially the form attached hereto as Exhibit C hereto; (i) the ICI Parties and the GOF Parties shall have made all mandatory filings which impose suspensory obligations and shall have Back to Contents taken all actions required to be taken by the ICI Parties and the Buyer, if any, with a Governmental Entity, in each case, that are required to be made or taken to consummate the transactions at the Initial Closing; and (ii) all applicable waiting and other time periods (and any extensions thereof) (A) under the HSR Act or (B) during which any Competition Authority could intervene with the effect of preventing the consummation of the Initial Closing shall have been terminated or shall have expired or lapsed, and any decisions or confirmations required to be obtained from any Competition Authority shall have been obtained in connection with the aggregate principal amount as is set forth opposite such Lender’s name transactions to be consummated at the Initial Closing; (e) the ICI Parties and the GOF Parties shall have: (i) obtained all third party (other than Governmental Entities and the HSCC consents that may be required to be obtained under the HIH LLC Agreement in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of connection with the transactions contemplated by this Agreement Agreement) consents and approvals required of the ICI Parties and of the GOF Parties to consummate all of the transactions contemplated hereunder including, without limitation, the sale of the B Notes and the issuance sale of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders Alta Interest and (ii) provided executed copies of all such consents and approvals; (f) all corporate and other proceedings taken or required to be taken by the Borrower ICI Parties and the GOF Parties in connection with the transactions contemplated hereby and all documents and instruments incident thereto shall deliver be satisfactory in form and substance to the GOF Parties, the ICI Parties and their respective counsel; (g) each Lender of the ICI Parties is delivering to the GOF Parties a certificate executed by the secretary or assistant secretary of each of the ICI Parties, certifying as to: (i) the resolutions (with copies attached to such certificate) duly adopted by the Board(s) of Directors and stockholders, as applicable, of each of the relevant ICI Parties authorizing the execution, delivery and performance of, as applicable, this Agreement, the Note Security Documents, and each of the other agreements contemplated hereby and thereby, and the sale of the B Notes and the Alta Interest, (ii) in the denominations case of ICI Alta, copies of its certificate of incorporation and bylaws as in effect as of the date of the Initial Closing and (iii) such Lender shall have other customary matters as may reasonably be requested prior by the GOF Parties; (h) the ICI Parties are delivering to the Closing) which such Lender is then purchasing, duly executed on behalf GOF Parties a certificate of good standing for ICI Alta from the Secretary of State of the Borrower State of Delaware; (i) HIH is executing and registered delivering to the Buyer a representation and indemnity agreement relating to the business and affairs of HIH, in form and substance reasonably satisfactory to the name Buyer; (j) ICI Finance is assigning to the Buyer the HIH Registration Rights Agreement; (k) Huntsman Corporation is executing and delivering to ICI Alta a letter agreement, in form and substance satisfactory to ICI Alta, pursuant to which, among other things, Huntsman Corporation is granting certain covenants for the benefit of ICI Alta; (l) GOF is delivering to the ICI Parties a certificate executed by an appropriate officer of the general partner of GOF certifying (i) that the execution, delivery and performance of this Agreement, the Note Security Documents and each of the other agreements contemplated hereby and thereby have been duly authorized by GOF and (ii) such Lender other customary matters as may reasonably be requested by the ICI Parties; (m) the Buyer is delivering to the ICI Parties a certificate executed by the secretary or assistant secretary of the Buyer certifying as to: (i) the resolutions (with copies attached to such certificate) duly adopted by the Board of Directors and stockholders, as applicable, of the Buyer authorizing the execution, delivery and performance of this Agreement, the Note Security Documents and each of the other agreements contemplated hereby and thereby, and the purchase of the B Notes and the Alta Interest, (ii) copies of its designeecertificate of incorporation and bylaws as in effect as at the date of the Initial Closing and (iii) such other customary matters as may reasonably be requested by the ICI Parties; and (n) the Buyer is delivering to the ICI Parties a certificate of good standing for the Buyer from the Secretary of State of the State of Delaware. The effectiveness of this Agreement shall be conditioned upon all of the actions described in this Section 2.03 having taken place at the Initial Closing.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share (i) Not less than five (5) Business Days prior to the Initial Closing Date, the Sellers shall prepare, or cause to be prepared, and will deliver to the Buyer (1) an estimated closing statement with respect to the portion of the aggregate purchase price Business conducted at the applicable Facility as of the Initial Closing Date (the “Estimated Initial Closing Note Purchase PriceStatement”) ), signed by an authorized officer of the Notes to be purchased by the Lenders at the Closing Sellers (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of the Sellers), which sets forth solely with respect to the portion of the Business conducted at the applicable Facility, (A) the Estimated Initial Closing Net Working Capital Amount, (B) (I) the Estimated Initial Closing Net Working Capital Surplus, if any, or (II) the Estimated Initial Closing Net Working Capital Deficit, if any, (C) the Estimated Initial Closing Other Third-Party Brand Amount, (D) (I) the Estimated Initial Closing Other Third-Party Brand Surplus, if any, or (II) the Estimated Initial Closing Other Third-Party Brand Deficit, if any, (E) the Estimated Initial Closing DP Amount, (F) (I) the Estimated Initial Closing DP Surplus, if any, or (II) the Estimated Initial Closing DP Deficit, if any, (G) the Estimated Initial Closing DP COGS Adjustment Amount, (H) (I) the amount of the Estimated Initial Closing DP COGS Adjustment Deficit, if any, or (II) the amount of the Estimated Initial Closing DP COGS Adjustment Surplus, if any, (I) the Estimated Initial Closing Residual Transferred Assets Amount, (J) (I) the Estimated Initial Closing Residual Transferred Assets Surplus, if any, or (II) the Estimated Initial Closing Residual Transferred Assets Deficit, if any, (K) the Estimated Initial Closing Other Assets and Liabilities Amount, (L) (I) the Estimated Initial Closing Other Assets and Liabilities Surplus, if any, or (II) the Estimated Initial Closing Other Assets and Liabilities Deficit, if any, (M) the Estimated Initial Closing Retained Assets Amount, (N) the Estimated Initial Closing Retained Liabilities Amount, and (2) the unaudited balance sheet with respect to the portion of the Business conducted at the applicable Facility as of the Business Day that is the Sellers’ last accounting day in the fiscal month prior to the fiscal month in which the Initial Closing occurs determined consistent with the Agreed Financial Methodology (the “Estimated Initial Closing Date Unaudited Balance Sheet”). All estimates set forth in the Estimated Initial Closing Statement contemplated by clauses (C), (D), (E), (F), (G) and (H) of the preceding sentence will be based on, and be consistent with, (x) the unaudited statement of income of the Business for the Sellers’ most recently completed fiscal year for which year-end financial statements are available as of the Initial Closing and (y) the Agreed Financial Methodology, and such Lender estimates shall be as of the final day of such fiscal year, and such estimates contemplated by clauses (G) and (H) of the preceding sentence will also be based on, and be consistent with, the finished goods supply agreements between CCR and the Buyer that were in effect with respect to such fiscal year for any of the Sub-Bottling Territory (as defined in the Distribution APA) and the Exchange Territory. All other estimates set forth in the Estimated Initial Closing Statement will be consistent with the Agreed Financial Methodology and financial information for the applicable fiscal period in a form substantially similar to the information provided pursuant to Section 5.02(d)(i) of the Disclosure Schedule, and such estimates shall be based on the Sellers’ data included in the Estimated Initial Closing Date Unaudited Balance Sheet. The Sellers hereby agree to conduct a physical inventory count on the Business Day which is the Sellers’ last accounting day in the fiscal month prior to the fiscal month in which the Initial Closing occurs for the purpose of preparing the Estimated Initial Closing Statement. The Sellers shall provide the Buyer with reasonable advance notice of any such physical inventory count, and hereby agree that the Buyer and its Representatives shall be permitted to attend any such physical inventory count conducted by the Sellers at such time and at such places as the Sellers specify. (ii) The Sellers hereby agree to conduct a physical inventory count on the Initial Closing Date for the purpose of preparing the Initial Closing Preliminary Amounts Schedule. The Sellers hereby agree that the Buyer and its Representatives shall be permitted to attend any such physical inventory count conducted by the Sellers at such time and at such places as the Sellers specify. No later than one hundred twenty (120) days following the Initial Closing Date, the Sellers will prepare, or cause to be prepared, and will deliver to the Buyer the Initial Closing Financial Information and the Initial Closing Preliminary Amounts Schedule. The Initial Closing Preliminary Amounts Schedule will be based on, and consistent with, the Initial Closing Financial Information. Upon reasonable prior written notice, the Buyer shall provide the Sellers and their respective Representatives with reasonable access, during normal business hours, to the Buyer’s Representatives and such books and records as may be reasonably requested by the Sellers and their respective Representatives in order to prepare the Initial Closing Financial Information and the Initial Closing Preliminary Amounts Schedule; provided, however, that (x) such access shall not unreasonably interfere with any of the businesses or operations of the Buyer or any of its designeeAffiliates and (y) the auditors and accountants of the Buyer or any of its Affiliates shall not be obliged to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. (iii) The Buyer shall have one hundred twenty (120) days following receipt of the Initial Closing Preliminary Amounts Schedule during which to notify the Sellers of any dispute of any item contained in the Initial Closing Preliminary Amounts Schedule, which notice shall set forth in reasonable detail the basis for such dispute (an “Initial Closing Notice of Dispute”). Upon reasonable prior written notice, the Sellers shall provide the Buyer and its Representatives with reasonable access, during normal business hours, to the Sellers’ Representatives and such books and records as may be reasonably requested by the Buyer and its Representatives in order to verify the information contained in the Initial Closing Financial Information and the Initial Closing Preliminary Amounts Schedule; provided, however, that (x) such access shall not unreasonably interfere with any of the businesses or operations of the Sellers or their Affiliates and (y) the auditors and accountants of the Sellers or any of their Affiliates shall not be obliged to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. (iv) If the Buyer does not provide the Sellers with an Initial Closing Notice of Dispute within such one hundred twenty (120) day period, the Initial Closing Preliminary Amounts Schedule prepared by the Sellers shall be deemed to be the Initial Closing Final Amounts Schedule and will be conclusive and binding upon all parties hereto. (v) If the Buyer provides the Sellers with an Initial Closing Notice of Dispute within such one hundred twenty (120) day period, the Buyer and the Sellers shall cooperate in good faith to resolve any such dispute as promptly as possible, and upon such resolution, the Initial Closing Final Amounts Schedule shall be prepared in accordance with the agreement of the Buyer and the Sellers. If the Buyer and the Sellers are unable to resolve any dispute regarding the Initial Closing Preliminary Amounts Schedule within thirty (30) days after the Sellers’ receipt of the Initial Closing Notice of Dispute, or such longer period as the Buyer and the Sellers shall mutually agree in writing, such dispute shall be resolved in accordance with Section 2.07(d). (vi) The Initial Closing Cash Payment shall be adjusted following the Initial Closing in accordance with Section 2.07(e).

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The closing of the aggregate sale and purchase price of the Initial Shares (the “Closing Note Purchase PriceInitial Closing”) under this Agreement shall take place at the offices of Mxxxxx, Xxxxx & Bxxxxxx LLP, Oxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000 (or such other place as Apollo and Carlyle may agree upon in writing) as promptly as reasonably practicable after the Notes date hereof (or on such other date as the Participants may agree upon in writing). The date on which the Initial Closing occurs is referred to in this Agreement as the “Initial Closing Date”. Notwithstanding the foregoing provisions of this Section 6.1, the obligation of each Participant to purchase the Initial Shares to be purchased by the Lenders it at the Initial Closing shall be subject to the fulfillment of the following conditions: (as defined below), which is a) The representations and warranties of the other Participant set forth opposite such Lender’s name in column four Article IV shall be true and correct on the Initial Closing Date. (4b) The representations and warranties of the Schedule of Lenders attached hereto, the Borrower Company shall issue be true and sell to such Lender correct on the Initial Closing Date Date (as defined below)c) Apollo and Carlyle shall have received written confirmation from the Secretary of State of the State of Delaware that the Certificate of Incorporation has been filed with and accepted by such Secretary of State. (d) Apollo and Carlyle shall have received all required governmental and regulatory approvals, and each all waiting periods under any applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Noteantitrust regulations shall have expired, in substantially connection with the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) formation of the Schedule of Lenders attached hereto. The closing (Company and the “Closing”) consummation of the transactions contemplated by this Agreement (including without limitation the expiration of any applicable waiting periods under the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended). (e) The Company shall have received payment from each of Apollo and the issuance Carlyle of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower price for the Notes to be issued and sold to such Lender at the Closing, their respective Initial Shares by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver funds to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed an account designated by or on behalf of the Borrower Company on or prior to the Initial Closing. (f) Each of Apollo, Carlyle and registered the Company shall have each executed and delivered to each other a counterpart signature pages to each Additional Agreement to which it is a party pursuant to Sections 7.1 and 7.2. (g) The Company shall have obtained a directors’ and officers’ liability insurance policy and an error and omissions insurance policy in such amounts and on such terms mutually acceptable to the name of such Lender or its designeeParticipants.

Initial Closing. In consideration for each applicable Lender’s payment of its pro rata share The closing of the aggregate purchase price (the “Closing Note Purchase Price”) of the Notes to be purchased by the Lenders at the Closing (as defined below), which is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto, the Borrower Initial Debenture shall issue and sell to such Lender on the Closing Date (as defined below), and each applicable Lender severally, but not jointly, agrees to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount as is set forth opposite such Lender’s name in column four (4) of the Schedule of Lenders attached hereto. The closing (the “Closing”) of the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur take place at the offices of Xxxxxxxxx Ball Xxxxxx Xxxxxx Xxxxxxxx LLP& Xxxxxxxxxx, LLP (“WBEMS”), 000 Xxxx Xxx Xxxxxxx Xxxx, Xxxxxx Xxxxxx, Xxxxx 0000Xxxxx, Xxxxxxx, Xxxxxxxx Xxx Xxxx 00000. The date and time of , simultaneous with the Closing execution hereof (the “Closing DateInitial Closing”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On At the Closing DateInitial Closing, (i) each Lender shall pay its pro rata share the Company will deliver to the Investor the duly executed Initial Debenture and one or more stock certificates evidencing the number of Equity Incentive Shares registered in the name of Investor to be delivered pursuant to Section 1.1(b)(i) hereof against delivery by the Investor to the Company of the Closing Note Initial Debenture Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, therefor by wire transfer of immediately available fundsfunds in the amount thereof to the Company’s bank account at Capital One Bank, as more fully set forth on 000 Xxxx Xxxx Xxxxxx, Xxxx Xxxxx, Xxx Xxxx 00000 (Account Number: 7924030518) (the Schedule of Lenders “Company Bank Account”) or by such other method agreed to in writing by the Investor and the Company, (ii) the Borrower Company shall deliver to each Lender execute the Notes (Security Agreement in favor of the Investor in the denominations form of Exhibit B attached hereto (the “Security Agreement”) and such financing statements under the Uniform Commercial Code as such Lender shall have requested prior to may be required pursuant thereto and as may be reasonably required by the ClosingInvestor, (iii) which such Lender is then purchasing, duly executed on behalf each of the Borrower and registered Principals shall execute the Pledge Agreement in favor of Investor in the name form of such Lender or its designeeExhibit C attached hereto (the “Pledge Agreement”) and the Limited Non-Recourse Guaranty (the “Guaranty”) in favor of the Investor in the form of Exhibit D attached hereto; and (iv) the Company shall pay all fees due to third party agents and expenses incurred by the Investor and/or Agile Investments, LLC in connection with the transactions hereunder, including, without limitation, the legal fees and expenses of WBEMS incurred in connection with the preparation of this Agreement and the consummation of the transactions contemplated hereby (not to exceed $10,000 in total amount) and $9,000 payable to Agile Investments, LLC for due diligence costs, structuring and monitoring fees.

Initial Closing. In consideration The obligation of each Buyer hereunder to purchase the Initial Notes and the related Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each applicable Lender’s payment Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company and each of its pro rata share Subsidiaries shall have duly executed and delivered to Gramercy Funds Management LLC on behalf of such Buyer each of the aggregate purchase price following documents to which it is a party: (the “Closing Note Purchase Price”A) each of the Transaction Documents, (B) the Initial Notes to be purchased by the Lenders at the Closing (allocated in such principal amounts as defined below), which is set forth opposite such Lender’s Buyer's name in column four columns (43)(a) and (4)(a) of the Schedule of Lenders Buyers) being purchased by such Buyer at the Initial Closing and (C) the related Warrants (allocated in such amounts as is set forth opposite such Buyer's name in column (5) of the Schedule of Buyers) being purchased by such Buyer at the Initial Closing. (ii) Such Buyer shall have received the opinion of (i) Norton Xxxx Xxxxxxxxx Canada LLP, the Company's outside Canadian counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit E-1 attached hereto, (ii) Xxxxxx & Whitney LLP, the Borrower Company's outside United States counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit E-2 attached hereto, (iii) Djunga & Risasi, the Company's outside DRC counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit E-3 attached hereto and Xxxxxx Xxxxxxx Xxxxxx, the Company's outside Barbados counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit E-4 attached hereto. (iii) The Company shall issue and sell have delivered to such Lender on Buyer a copy of the Closing Date Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, which instructions shall have been delivered to the Company's transfer agent. (as defined below)iv) The Company shall have delivered to such Buyer (i) a certificate of compliance with the CBCA of the Company, and (ii) evidence of the absence of a default of the Company's reporting issuer status, and each Subsidiary shall have delivered to such Buyer a certificate evidencing the formation and status of such Subsidiary in such Subsidiary's jurisdiction of formation issued by the applicable Lender severallyMinistry or governmental department (or comparable office) of such jurisdiction, but not jointlyas of a date within ten (10) days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation (if applicable) and good standing issued by the applicable Ministry or governmental department (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, agrees as of a date within ten (10) days of the Initial Closing Date. (vi) The Company shall have delivered to purchase from such Buyer a certified copy of the Borrower on articles, bylaws and other constating documents, as applicable, of the Company and each of its Subsidiaries as certified by the applicable Ministry or governmental department (or equivalent) in the applicable jurisdiction of incorporation within ten (10) days of the Initial Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and the Subsidiaries, as applicable, and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's and each of its Subsidiaries' board of directors in a Noteform reasonably acceptable to such Buyer, (ii) the articles, bylaws and other constating documents of the Company and each of its Subsidiaries and (iii) incumbency, in substantially the form attached hereto as Exhibit AF. (viii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the aggregate principal amount form attached hereto as is set forth opposite Exhibit G. (ix) The Company shall have delivered to such Lender’s name in column four Buyer a letter from the Company's transfer agent certifying the number of Common Shares outstanding as of a date within five (45) days of the Schedule Initial Closing Date. (x) The Common Shares (I) shall be designated for quotation or listed on the Principal Markets and (II) shall not have been suspended, as of Lenders attached heretothe Initial Closing Date, by the SEC, the CSA or the Principal Markets from trading on either Principal Market nor shall suspension by the SEC, the CSA or either Principal Market have been threatened, as of the Initial Closing Date, either (A) in writing by the SEC, the CSA or either Principal Market or (B) by falling below the minimum listing maintenance requirements of either Principal Market. The closing approval of the Principal Markets for the issuance of the Securities contemplated hereby (to the extent required) and conditional listing of the Warrant Shares shall have been obtained. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) Each of the Company's Subsidiaries (other than those incorporated in Barbados) shall have executed and delivered to such Buyer the Guarantee Agreement. (xiii) The Company shall have taken all steps under the Collateral Trust Agreement to designate the Initial Priority Notes as Priority Lien Debt and to ensure that such Priority Lien Debt is secured by a Priority Lien on a pari passu basis with all previously existing Priority Lien Debt (and that is senior to the Parity Liens). (xiv) The Company shall have taken all steps under the Collateral Trust Agreement to designate the Initial Parity Notes as Parity Lien Debt and to ensure that such Parity Lien Debt is secured by a Parity Lien on a pari passu basis with all previously existing Parity Lien Debt (and that is subordinate to the Priority Liens). (xv) The Priority Debt Representative shall have received certified copies of searches disclosing all financing statements (or equivalents) under or pursuant to the Personal Property Security Act and such comparable legislation in Barbados and the Democratic Republic of Congo evidencing the perfection of security interests purported to be created by the Collateral Documents in favor of the Collateral Agent for the benefit of the Priority Lien Secured Parties to secure the obligations under the Initial Priority Notes, being Priority Lien Obligations. (xvi) The Parity Debt Representative shall have received certified copies of searches disclosing all financing statements (or equivalents) under or pursuant to the Personal Property Security Act and such comparable legislation in Barbados and the Democratic Republic of Congo evidencing the perfection of security interests purported to be created by the Collateral Documents in favor of the Collateral Agent for the benefit of the Parity Lien Secured Parties to secure the obligations under the Initial Parity Notes, being Parity Lien Obligations. (xvii) The Priority Debt Representative shall have received copies of the executed Collateral Trust Agreement and all Collateral Documents creating a Priority Lien on the collateral secured thereby requested by the Buyers. (xviii) The Parity Debt Representative shall have received executed copies of the Collateral Trust Agreement and all Collateral Documents creating a Parity Lien on the collateral secured thereby requested by the Buyers. (xix) Neither the Company nor any of its Subsidiaries shall have received any notice (whether written or oral) from the Ministry of Mines in the DRC or any other governmental authority of the DRC (the “Closing”"DRC State"), whether pursuant to any ongoing or proposed title review proceedings with the DRC State or otherwise, which in the opinion of such Buyer, withdraws or purports to withdraw any benefits currently held by the Company pursuant to its mining convention with the DRC State (including with regard to exemptions granted to the Company under the taxation laws, import and export laws and royalty laws under the terms of such convention). (xx) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement and the issuance Agreement. (xxi) The Company shall have delivered to each Buyer a copy of the Notes lock-up agreement in the form attached hereto as Exhibit J executed and delivered by each of the Persons listed on Schedule 7(a)(xxii) (collectively, the "Lock-Up Agreements"). (xxii) The Company shall have issued a press release acceptable to the Buyers and shall have filed (x) a Current Report on Form 6-K and (y) a material change report on Form 51-102F3 in accordance with National Instrument 51-102 of the CSA with respect thereto, in each case describing (1) the terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and National Instrument 51-102 and attaching, to the extent required, the material Transaction Documents, (2) the Company's overall financial plan and (3) the Company's forward looking guidance, in each case in accordance with the provisions of Section 4(i) To the extent that any material Transaction Documents are not attached to a material change report in accordance with the immediately preceding sentence because they are not required to be issued attached or otherwise, all of such material Transaction Documents, or forms thereof, shall have been made publicly available on the Closing Date Company's public record by the Borrower and the purchase thereof by the applicable Lenders filing such material Transaction Documents on SEDAR. (xxiii) The Company shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject have delivered to notification of satisfaction (or waiver) of the conditions such Buyer such other documents relating to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to transactions contemplated by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations this Agreement as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender Buyer or its designeecounsel may reasonably request.

Initial Closing. In consideration The obligation of each Buyer hereunder to purchase the Initial Preferred Shares and the related Initial Warrants at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for each applicable Lender’s payment of Buyer's sole benefit and may be waived by such Buyer at any time in its pro rata share sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer (A) each of the aggregate purchase price Transaction Documents and (B) the “Closing Note Purchase Price”Initial Preferred Shares (in such numbers as is set forth across from such Buyer's name in column (3) of the Notes to be purchased by Schedule of Buyers and the Lenders at the Closing related Initial Warrants (in such numbers as defined below), which is set forth opposite across from such Lender’s Buyer's name in column four (4) of the Schedule of Lenders Buyers) being purchased by such Buyer at the Initial Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Guzov Ofsink, LLC, the Company's outside counsel, dated as of the Initial Closing Date, in substantially the form of Exhibit E attached hereto. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Borrower Company's transfer agent. (iv) The Company shall issue and sell have delivered to such Lender on Buyer a long-form certificate evidencing the Closing Date (as defined below), formation and good standing of the Company and each applicable Lender severallyof its Subsidiaries in each such entity's jurisdiction of formation issued by the Secretary of State (or equivalent) of such jurisdiction of formation as of a date within ten (10) days of the Initial Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, but not jointlyas of a date within 10 days of the Initial Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the Initial Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, agrees to purchase from executed by the Borrower on Secretary of the Company and dated as of the Initial Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company's board of directors in a Noteform reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Closing, in substantially the form attached hereto as Exhibit F. (viii) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit G. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Initial Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Initial Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended. (xiii) The Company shall have delivered to such Buyer duly executed Voting Agreements, in the form attached hereto as Exhibit H (the "Voting Agreements"). (xiv) The conversion of all shares of the Company's Series A Preferred Stock, Series A-1 Preferred Stock, Series B Preferred Stock and Series K Preferred Stock shall have occurred pursuant to documentation previously reviewed by, and reasonably acceptable to, such Buyer and evidence thereof from the transfer agent for the Common Stock shall have been provided. (xv) No event or events shall have occurred since the date hereof that, taken individually or in the aggregate principal amount aggregate, would reasonably be expected to have a Material Adverse Effect. (xvi) The Closing Sale Price (as is set forth opposite such Lender’s name defined in column four (4the Certificate of Designations) of the Schedule Common Stock immediately preceding execution of Lenders attached hereto. this Agreement shall not exceed $1.75. (xvii) The closing Company shall have delivered to such Buyer a copy of the Amendment to the Credit Agreement between the Company and Xxxxx Fargo in which Xxxxx Fargo shall agree to exempt at least $3,000,000 of the proceeds to the Company from the sale of the Preferred Shares and the Warrants from the scope of the liens on the Company's assets held by Xxxxx Fargo (the “"Initial Exemption"). (xviii) No more and no less than 10,000 Initial Preferred Shares shall be issued at the Initial Closing”. (xix) of The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement and the issuance of the Notes to be issued on the Closing Date by the Borrower and the purchase thereof by the applicable Lenders shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m., Chicago time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Closing set forth in Section 5.1 below (or such later date as is mutually agreed to by the Borrower and the Agent). On the Closing Date, (i) each Lender shall pay its pro rata share of the Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at the Closing, by wire transfer of immediately available funds, as more fully set forth on the Schedule of Lenders and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to the Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender Buyer or its designeecounsel may reasonably request.

Initial Closing. In Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, in consideration for the payment of each applicable LenderBuyer’s payment of its pro rata share of the aggregate purchase price (the “Closing Note Initial Purchase Price”) of the Notes to be purchased by the Lenders at the Closing Price (as defined below), which is set forth opposite such Lender’s name in column four ) (4i) of the Schedule of Lenders attached hereto, the Borrower Company shall issue and sell to such Lender each Buyer, and each Buyer agrees to purchase from the Company on the Initial Closing Date (as defined below), the Debenture in the principal amount set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers and (ii) the Company shall deliver or cause to be delivered to each applicable Lender severally, but not jointly, agrees Buyer on the Initial Closing Date the Warrant to purchase from the Borrower on the Closing Date, a Note, in substantially the form attached hereto as Exhibit A, and in the aggregate principal amount of Warrant Shares as is set forth opposite such LenderBuyer’s name in column four (4) of on the Schedule of Lenders attached heretoBuyers. The closing (the “Initial Closing”) of the transactions contemplated by this Agreement and the issuance purchase of the Notes to be issued on the Closing Date Securities by the Borrower and the purchase thereof by the applicable Lenders Buyers shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx MxXxxxxxx Will & Exxxx LLP, 000 Xxxx Xxxxxx 300 Xxxxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, Xxxxxxx, Xxxxxxxx Xxx Xxxx 00000. The date and time of the Initial Closing (the “Initial Closing Date”) shall be 10:00 a.m., Chicago New York City time, on the date hereof, subject to notification of satisfaction (or waiver) of the conditions to the Initial Closing set forth in Section 5.1 Sections 6 and 7 below (or such later date as is mutually agreed to by the Borrower Company, Parent and the AgentBuyers). The aggregate purchase price (the “Initial Purchase Price”) of the Debentures and the Warrants to be purchased by the Buyers at the Initial Closing shall be equal to $6,000,000. On the Initial Closing Date, (i) each Lender Buyer shall pay its pro rata share of the Closing Note Initial Purchase Price to the Borrower Company for the Notes Debenture and the Warrant to be issued and sold to such Lender Buyer at the Initial Closing, by wire transfer of immediately available fundsfunds in accordance with Company’s written wire instructions, as more fully set forth on the Schedule of Lenders and (ii) the Borrower Company shall deliver to each Lender the Notes Buyers (in A) the denominations as such Lender shall have requested prior to the Closing) Debenture which such Lender Buyer is then purchasing, duly executed on behalf of the Borrower Company and registered in the name of such Lender Buyer or its designee and (B) the Warrant which such Buyer is then purchasing, duly executed on behalf of the Parent and registered in the name of such Buyer or its designee.