Common use of Terms of Offering Clause in Contracts

Terms of Offering. The Initial Purchaser has advised the Company, and the Company understands, that the Initial Purchaser will make offers to sell (the “Exempt Resales”) some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering Circular, as amended or supplemented, to persons (the “Subsequent Purchasers”) whom the Initial Purchaser (i) reasonably believes to be “qualified institutional buyers” (“QIBs”) as defined in Rule 144A under the Act, as such may be amended from time to time, (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “accredited investors” (“Accredited Investors”) as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or (iii) reasonably believes to be non-U.S. persons under Regulation S under the Act. Pursuant to the Indenture, any and all Subsidiaries (as defined in the Indenture) of the Company, jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under the Indenture and the Notes (such Subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor and such guarantee being referred to herein as a “Guarantee”). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture), all of the obligations under the Notes and the Indenture will be secured by a first priority lien and security interest in substantially all of the tangible and intangible assets of the Company and the North Carolina LLC Subsidiary Guarantor (subject to prior ranking claims or such assets, including a prior ranking lien on accounts receivable, inventory and related assets by the lenders under the Credit Agreement). Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “Registration Rights Agreement”), to be executed on and dated as of the Closing Date. Pursuant to the Registration Rights Agreement, the Company will agree, among other things, to file with the Securities and Exchange Commission (the “SEC”) (a) a registration statement under the Act relating to Senior Secured Notes (the “Exchange Notes”) which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “Exchange Offer”), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement”) relating to the resale by certain holders of the Notes. If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “Private Exchange Notes”). If the Company fails to satisfy its obligations under the Registration Rights Agreement, they will be required to pay additional interest to the holders of the Notes under certain circumstances. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights Agreement, the Notes, the Guarantees, the Exchange Notes and the Private Exchange Notes are referred to herein as the “Documents.”

Terms of Offering. The Initial Purchaser has Purchasers have advised the Company, and the Company understands, that the Initial Purchaser Purchasers will make offers to sell (the “Exempt Resales”) some or all of the Notes Offered Securities purchased by the Initial Purchaser Purchasers hereunder on the terms set forth in the Final Offering CircularMemorandum, as amended or supplemented, to persons (the “Subsequent Purchasers”) whom the Initial Purchaser Purchasers (i) reasonably believes believe to be “qualified institutional buyers” (“QIBs”) as defined in Rule 144A under the Act, as such may be amended from time to time, (ii) reasonably believes believe (based upon written representations made by such persons to the Initial PurchaserPurchasers) to be institutional “accredited investors” (“Accredited Investors”) as defined in Rule 501(a)(1), (2), (3) or (7) under the Act (“Accredited Investors”) or (iii) reasonably believes believe to be non-U.S. persons under in reliance upon Regulation S under the Act. Pursuant to the Indenture, any all existing and all future Domestic Restricted Subsidiaries (as defined in the Indenture) of the Company, jointly and severally, Company shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under the Indenture and the Notes (each such Subsidiary subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor a “Guarantor” and each such guarantee being referred to herein as a “Guarantee”). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture)Agreements, all of the obligations under the Notes Securities and the Indenture will initially be secured secured, to the extent permitted by law, by a first priority lien and security interest in substantially all of the tangible and intangible assets of the Company and its existing and future Domestic Restricted Subsidiaries, other than the North Carolina LLC Subsidiary Guarantor Excluded Assets (subject to prior ranking claims or such assets, including a prior ranking lien on accounts receivable, inventory and related assets by the lenders under the Credit AgreementWorking Capital Facility and pari passu liens on Subsidiaries that do not hold the Company’s 24GHz or 39GHz FCC licenses securing any Pari Passu Indebtedness), and a first priority lien and security interest in the capital stock of the Company’s existing and future Domestic Restricted Subsidiaries (subject to a prior ranking lien by the lenders under the Working Capital Facility and pari passu liens on Subsidiaries that do not hold the Company’s 24GHz or 39GHz FCC licenses securing any Pari Passu Indebtedness). In addition, the Offered Securities will be secured by a first priority lien and security interest in amounts deposited in the Escrow Account (as hereinafter defined), which lien and security interest will secure no indebtedness other than the Securities. The PIK Additional Securities, if and to the extent issued, will be secured, equally and ratably, with the Securities. Holders of the Notes Offered Securities and PIK Additional Securities (including Subsequent Purchasers) will have the registration rights set forth in the a registration rights agreement applicable to the Notes Offered Securities and the PIK Additional Securities (the “Registration Rights Agreement”), to be executed and delivered by the Company and the Guarantors on and dated as of the First Closing Date. Pursuant to the Registration Rights Agreement, the Company and the Guarantors will agree, among other things, to to (i) file with the Securities and Exchange Commission (the “SEC”) (a) a registration statement ), under the Act relating to Senior Secured Notes (circumstances set forth in the “Exchange Notes”) which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “Exchange Offer”), and/or (b) under certain circumstancesRegistration Rights Agreement, a shelf registration statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement”) ), relating to the resale by certain holders of the Notes. If required under the Registration Rights Agreement, Offered Securities and any PIK Additional Securities that could be issued by the Company will issue Exchange Notes pursuant to the Initial Purchaser terms of the Securities and the Shares that may be issued upon the conversion of the Offered Securities and the PIK Additional Securities, and (the “Private Exchange Notes”)ii) use their commercially reasonable efforts to cause such Shelf Registration Statement to be declared effective. If the Company fails to satisfy its obligations under the Registration Rights Agreement, they it will be required to pay additional interest liquidated damages to the holders of the Notes Offered Securities and the PIK Additional Securities under certain circumstances. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights Agreement, the NotesEscrow Agreement (as defined below), the Guarantees, the Exchange Notes Offered Securities and the Private Exchange Notes all agreements ancillary thereto are collectively referred to herein as the “Documents.”

Terms of Offering. The Initial Purchaser has advised the Company, and the Company understands, that the Initial Purchaser will make offers to sell (the “Exempt Resales”) some or all of the Notes Units purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering Circular, as amended or supplemented, to persons (the “"Subsequent Purchasers”") whom the Initial Purchaser (i) reasonably believes to be “"qualified institutional buyers” " (“"QIBs”") as defined in Rule 144A under the Act, as such may be amended from time to time, (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “"accredited investors” (“Accredited Investors”) " as defined in Rule 501(a)(1), (2), (3) or (7) under the Act ("Accredited Investors") or (iii) reasonably believes to be non-U.S. persons under in reliance upon Regulation S under the ActAct (any such sales in connection with the original distribution of the Units, the "Exempt Resales"). Pursuant to the Indenture, any and all future Domestic Restricted Subsidiaries (as defined in the Indenture) of the Company, jointly and severally, Company that are not Immaterial Subsidiaries shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s 's obligations under the Indenture and the Notes (each such Subsidiary subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor a "Guarantor" and each such guarantee being referred to herein as a “"Guarantee”"). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture)Agreements, all of the obligations under the Notes and the Indenture will be secured by a first priority lien and security interest in substantially all of the tangible and intangible assets of the Company and such future Domestic Restricted Subsidiaries; provided, that such lien and security interest will be (i) in the North Carolina LLC Subsidiary Guarantor (subject to prior ranking claims or such assets, including a prior ranking lien on case of assets comprised of inventory and accounts receivable, inventory and related assets by contractually subordinated to the lenders under liens securing the Credit Agreement pursuant to the Intercreditor Agreement). Holders of the Notes , (including Subsequent Purchasersii) will have the registration rights set forth in the registration rights agreement applicable case of collateral comprised of real property, fixtures and improvements thereon and equipment, be contractually senior to the Notes (liens securing the “Registration Rights Agreement”), to be executed on and dated as of the Closing Date. Pursuant Credit Agreement pursuant to the Registration Rights Intercreditor Agreement, (iii) in the Company will agreecase of all other collateral, among other things, to file be contractually pari passu with the Securities liens securing the Credit Agreement pursuant to the Intercreditor Agreement and Exchange Commission (the “SEC”iv) in each such case, be subject to certain other prior liens. (a) a registration statement under the Act relating to Senior Secured Notes senior secured notes (the “"Exchange Notes”") which shall be substantially identical in all material respects to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “"Exchange Offer”"), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “"Shelf Registration Statement”") relating to the resale by certain holders of the Notes. If required under the Debt Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “"Private Exchange Notes”"). If the Company fails to satisfy certain of its obligations under the Debt Registration Rights Agreement, they it will be required to pay additional interest to the holders of the Notes under certain circumstances. Holders of the Warrants (including Subsequent Purchasers) will have the registration rights described in the Final Offering Circular, which will be set forth in the registration rights agreement (the "Equity Registration Rights Agreement" and, together with the Debt Registration Rights Agreement, the "Registration Rights Agreements"), to be dated the Closing Date, for so long as such Warrant Shares constitute Registrable Securities (as defined therein). Pursuant to the Equity Registration Rights Agreement, the Company will file a registration statement upon exercise of a demand registration right by the holders of the Registrable Securities (an "Equity Registration Statement") covering the resale of the Warrant Shares by the holders thereof and to use its reasonable best efforts to cause such Equity Registration Statement to be declared effective, subject to certain exceptions, and to remain effective for the period specified in the Equity Registration Rights Agreement. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights AgreementAgreements, the Notes, the Guaranteesany Guarantees by future Domestic Restricted Subsidiaries that are not Immaterial Subsidiaries, the Exchange Notes and Notes, the Private Exchange Notes (if any) the Warrants, the Warrant Shares, and the Units are collectively referred to herein as the “"Documents.”"

Terms of Offering. The Initial Purchaser has advised the Company, and the Company understands, that the Initial Purchaser will make offers to sell (the “"Exempt Resales”") some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering CircularNotes Time of Sale Circular (as defined below), as amended or supplemented, to persons (the “"Subsequent Purchasers”") (i) outside the United States in compliance with Regulation S of the Act, or (ii) whom the Initial Purchaser (iA) reasonably believes to be “"qualified institutional buyers” (“QIBs”) " as defined in Rule 144A under the ActAct ("QIBs"), as such Rule may be amended from time to time, or (iiB) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “"accredited investors” " (“"Accredited Investors”") as defined in Rule 501(a)(1), (2), (3) or (7) under the Act that make certain representations and warranties to the Initial Purchaser and the Company, which representations and warranties are set forth in the form of Accredited Investor Letter attached as Annex A to the Notes Offering Circular. The Initial Purchaser had advised the Company, and the Company understands, that the Initial Purchaser will make Exempt Resales of some or all of the Offered Shares purchased by the Initial Purchaser hereunder on the terms set forth in the Offered Shares Time of Sale Circular (iii) as defined below), as amended or supplemented, to the Subsequent Purchasers whom the Initial Purchaser reasonably believes to be non-U.S. persons under Regulation S under the ActQIBs. Pursuant to the Indenture, any and all current Domestic Restricted Subsidiaries of the Company as of the First Closing Date (as defined in the Indenturehereinafter defined) and future Domestic Restricted Subsidiaries of the Company, jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s 's obligations under the Indenture and the Notes (such Subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor and each such guarantee being referred to herein as a “"Guarantee”"). Pursuant to the terms of the Indenture and the Collateral Agreements (as defined in the IndentureNotes Preliminary Offering Circular), all of the Company's and each Guarantor's obligations under the Indenture, the Notes and the Indenture Guarantees will be secured by a first priority lien and security interest in Lien on substantially all of the tangible existing and intangible future property and assets of owned by the Company and the North Carolina LLC Subsidiary Guarantor Guarantors, provided, however, that pursuant to the terms of an Intercreditor Agreement, such lien will be contractually subordinated to a lien thereon that secures the Company's new revolving credit facility and certain other permitted indebtedness. The Company intends to use the proceeds to acquire (subject the "Acquisition") 100% of the issued and outstanding stock of Goldking Energy Corporation, a Delaware corporation ("Goldking"), and Goldking Energy Holdings L.P., a Texas limited partnership, from the sole shareholder of Goldking ("Shareholder") pursuant to prior ranking claims or such assetsthat certain stock purchase and sale agreement, including a prior ranking lien on accounts receivabledated as of April 13, inventory 2007 (the "SPSA"), between the Company and related assets by the lenders under Shareholder and to refinance the Credit Agreement)Company's existing indebtedness and pay fees and expenses in connection therewith. Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “"Notes Registration Rights Agreement”"), to be executed on and dated as of the First Closing DateDate (as hereinafter defined), in a form reasonably acceptable to the Initial Purchaser in conformity in all material respects with the description of such registration rights contained in the Notes Preliminary Offering Circular. Pursuant to the Notes Registration Rights Agreement, the Company and the Guarantors will agree, among other things, to file with the Securities and Exchange Commission (the “"SEC”") (ai) a registration statement under the Act (the "Notes Exchange Offer Registration Statement") relating to 10 1/2% Senior Second Secured Notes due 2012 (the “"Exchange Notes”) "), which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “"Exchange Notes Offer”"), and/or (bii) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “"Notes Shelf Registration Statement”") relating to the resale by certain holders of the Notes. If required under the Notes Registration Rights Agreement, the Company will issue Exchange Notes and cause the Guarantors to issue exchange guarantees to the Initial Purchaser (the “"Private Exchange Notes”" and "Private Exchange Guarantees," respectively). If the Company fails to satisfy its obligations under the Notes Registration Rights Agreement, they it will be required to pay additional interest to the holders of the Notes under certain circumstances in accordance with the terms of the Notes Registration Rights Agreement. Holders of the Offered Shares (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Offered Shares (the "Offered Shares Registration Rights Agreement" and, together with the Notes Registration Rights Agreement, the "Registration Rights Agreements"), to be executed on and dated as of the First Closing Date (as hereinafter defined), in a form reasonably acceptable to the Initial Purchaser in conformity in all material respects with the description of such registration rights contained in the Offered Shares Preliminary Offering Circular. Pursuant to the Offered Shares Registration Rights Agreement, the Company will agree, among other things, to file with the SEC (i) a registration statement under the Act (the "Offered Shares Exchange Offer Registration Statement" and, together with the Notes Exchange Offer Registration Statements, the "Exchange Offer Registration Statements") relating to 10% Senior Redeemable Convertible Preferred Stock (the "Exchange Preferred Stock"), which shall be identical to the Offered Shares (except that the Exchange Preferred Stock shall have been registered pursuant to such registration statements and will not be subject to restrictions on transfer) to be offered in exchange for the Offered Shares (such offer to exchange being referred to as the "Exchange Preferred Stock Offer" and, together with the Exchange Notes Offer, the "Exchange Offers"), and/or (ii) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the "Offered Shares Shelf Registration Statement" and, together with the Notes Shelf Registration Statement, the "Shelf Registration Statements") relating to the resale by certain holders of the Offered Shares. If the Company fails to satisfy its obligations under the Offered Shares Registration Rights Agreement, it will be required to pay additional dividends to the holders of the Offered Shares under certain circumstances in accordance with the terms of the Offered Shares Registration Rights Agreement. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights AgreementAgreements, the Notes, the Guarantees, the Offered Shares, the Exchange Notes Preferred Stock, the Underlying Securities, the Exchange Notes, the Private Exchange Notes, if any, and the Private Exchange Notes Guarantees, if any, are collectively referred to herein as the “"Documents.”"

Terms of Offering. The Initial Purchaser has advised the Company, and the Company understands, that the Initial Purchaser will make offers to sell (the “Exempt Resales”) some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering Circular, as amended or supplemented, to persons (the “Subsequent Purchasers”) whom the Initial Purchaser (i) reasonably believes to be “qualified institutional buyers” (“QIBs”) as defined in Rule 144A under the Act, as such Rule may be amended from time to timetime (“QIBs”), (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “accredited investors” (“Accredited Investors”) as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or (iii) reasonably believes to be non-U.S. persons under in reliance upon Regulation S under the Act. Pursuant to the Indenture, any all existing and all future Domestic Restricted Subsidiaries (as defined in the Indenture) of the Company, including the Subsidiary Guarantor, jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under the Indenture and the Notes (such Subsidiary guarantee being referred to herein as the North Carolina LLC Subsidiary Guarantor and such guarantee being referred to herein as a “Guarantee”). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture), all of the obligations under the Notes and the Indenture will be secured by a first priority lien and security interest in substantially all of the tangible and intangible assets Priority Collateral (as defined in the Indenture) of the Company and such Domestic Restricted Subsidiaries; provided, the North Carolina LLC Subsidiary Guarantor (subject lien and security interest in all other assets other than Priority Collateral will be contractually subordinated to prior ranking claims or such assets, including a prior ranking the lien on accounts receivable, inventory and related assets by of the lenders agent that secures the obligations under the New Credit AgreementAgreement to the extent provided in the Intercreditor Agreement (as defined in the Indenture). Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “Registration Rights Agreement”), to be executed on and dated as of the Closing DateDate (defined below). Pursuant to the Registration Rights Agreement, the Company and the Subsidiary Guarantor will agree, among other things, to file with the Securities and Exchange Commission (the “SEC”) (a) a registration statement under the Act relating to Senior Secured Notes senior secured floating rate notes (the “Exchange Notes”) which shall be identical in all material respects to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) and the related guarantees (the “Exchange Guarantees”), which shall be identical in all material respects to the Guarantees, each to be offered in exchange for the Notes and the Guarantees, respectively (such offer to exchange being referred to as the “Exchange Offer”), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement”) relating to the resale by certain holders of the NotesNotes and the Guarantees. If required under the Registration Rights Agreement, the Company will issue Exchange Notes and Exchange Guarantees to the Initial Purchaser (the “Private Exchange Notes”” and the “Private Exchange Guarantees,” respectively). If the Company fails and the Subsidiary Guarantor fail to satisfy its their respective obligations under the Registration Rights Agreement, they will be required to pay additional interest to the holders of the Notes under certain circumstances. This Agreement, the New Credit Agreement, the Indenture, the Collateral Agreements, the Intercreditor Agreement, the Registration Rights Agreement, the Notes, the Guarantees, the Exchange Notes, the Exchange Guarantees, the Private Exchange Notes and the Private Exchange Notes Guarantees are referred to herein as the “Documents.”

Terms of Offering. The Initial Purchaser has advised the Company, and the Company understands, that the Initial Purchaser will make offers to sell (the “Exempt Resales”) some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering CircularMemorandum, as amended or supplemented, to persons (the “Subsequent Purchasers”) whom the Initial Purchaser (i) reasonably believes to be “qualified institutional buyers” (“QIBs”) as defined in Rule 144A under the Act, as such may be amended from time to time, (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “accredited investors” (“Accredited Investors”) as defined in Rule 501(a)(1), (2), (3) or (7) under the Act (“Accredited Investors”) or (iii) reasonably believes not to be non-“U.S. persons persons” (as defined under Rule 902(e) of the Act) in reliance upon and in accordance with Regulation S under the Act. The Company has requested that the Initial Purchaser make Exempt Resales to certain institutional investors listed in the First Addendum to the Israeli Securities Law 5728-1968 (the “Company Identified Investors”). With respect to any sales to such investors the Company and the Initial Purchaser agree that: (a) such sales will be made to Poalim IBI Underwriting & Issuing Ltd., IBI Investments House Ltd., or one of their affiliates acceptable to the Initial Purchaser (collectively, “IBI”), who will purchase Notes on behalf of the Company Identified Investors and (b) the Initial Purchaser shall have received representations from IBI and each of the Company Identified Investors in form and substance satisfactory to it. Pursuant to the Indenture, any and all future domestic Restricted Subsidiaries (as defined in the Indenture) of the Company, if any, jointly and severally, shall will fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under the Indenture and the Notes Notes, subject to limitations intended to prevent such guarantees from constituting fraudulent conveyances under applicable law (each such Subsidiary subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor a “Guarantor” and each such guarantee being referred to herein as a “Guarantee”). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture)Documents, all of the obligations under the Notes and the Indenture will be secured by a first priority lien on and security interest in substantially all of the tangible and intangible assets of the Company constituting Notes Priority Collateral (other than the Crack Spread Hedging Collateral) and a second priority lien on and security interest in all of the North Carolina LLC Subsidiary Guarantor (assets of the Company constituting RCF Priority Collateral and Crack Spread Hedging Collateral, in each case subject to prior ranking claims or such assets, including a prior ranking lien on accounts receivable, inventory and related assets by the lenders under the Credit Agreement). Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “Registration Rights Agreement”), to be executed on and dated as of the Closing Date. Pursuant to the Registration Rights Agreement, the Company will agree, among other things, to file with the Securities and Exchange Commission (the “SEC”) Permitted Prior Liens. (a) a registration statement under the Act relating to Senior Secured Notes senior secured notes (the “Exchange Notes”) which shall be substantially identical in all material respects to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “Exchange Offer”), and/or and (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement”) relating to the resale by certain holders of the Notes. If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “Private Exchange Notes”). If the Company fails to satisfy its obligations under the Registration Rights Agreement, they it will be required to pay additional interest to the holders of the Notes under certain circumstances. This Agreement, the Indenture, the Collateral AgreementsDocuments, the Registration Rights Agreement, the Notes, the Guarantees, the Exchange Notes and the Private Exchange Notes are collectively referred to herein as the “Documents.”

Terms of Offering. The Initial Purchaser has advised the Company, and the Company understands, that the Initial Purchaser will make offers to sell (the “"Exempt Resales”") some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering Circular, as amended or supplemented, to persons (the “"Subsequent Purchasers”") whom the Initial Purchaser (i) reasonably believes to be “"qualified institutional buyers” (“QIBs”) " as defined in Rule 144A under the Act, as such Rule may be amended from time to timetime ("QIBs"), (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “"accredited investors” " (“"Accredited Investors”") as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or (iii) reasonably believes to be non-U.S. persons under in reliance upon Regulation S under the Act. Pursuant to the Indenture, any and all Subsidiaries (as defined in the Indenture) of the Company, jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under the Indenture and the Notes (such Subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor and such guarantee being referred to herein as a “Guarantee”). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture)Agreements, all of the obligations under the Notes and the Indenture will be secured by a first priority lien and security interest Liens in substantially all of the tangible and intangible assets of the Company and the North Carolina LLC Subsidiary Guarantor (subject to prior ranking claims or such assetsCompany, including including, without limitation, a prior ranking lien on accounts receivable, inventory and related assets by the lenders under the Credit Agreement). Holders pledge of the Notes Capital Stock of Phibro Animal Health Corporation, a New York corporation (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “Registration Rights Agreement”"Phibro Animal Health"), to be executed on and dated as of the Closing Date. Pursuant to the Registration Rights Agreement, the Company will agree, among other things, to file with the Securities and Exchange Commission (the “SEC”) . (a) a registration statement under the Act relating to Senior Secured Notes registering the offer and sale of senior secured notes (the “"Exchange Notes”") which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and statement, will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “"Exchange Offer”"), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “"Shelf Registration Statement”") relating to the resale by certain holders of the Notes. If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “"Private Exchange Notes”"). If the Company fails shall fail to satisfy its obligations under the Registration Rights Agreement, they it will be required to pay additional interest to the holders of the Notes under certain circumstances, as set forth in the Registration Rights Agreement. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights Agreement, the Notes, the GuaranteesExchange Notes, the Private Exchange Notes and the Private Exchange Notes Escrow and Security Agreement, to be dated February 10, 2005 (the "Escrow Agreement"), between the Company and HSBC Bank USA, National Association, as escrow agent and collateral agent, pursuant to which the Company will deposit the gross proceeds from the Offering in an escrow account (the "Escrow Account"), are referred to herein as the “"Documents.”"

Terms of Offering. The Initial Purchaser has advised the Company, and the Company understands, that the Initial Purchaser will make offers to sell (the “Exempt Resales”) some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering Circular, as amended or supplemented, to persons (the “Subsequent Purchasers”) whom the Initial Purchaser (i) reasonably believes to be “qualified institutional buyers” (“QIBs”) as defined in Rule 144A under the Act, as such Rule may be amended from time to timetime (“QIBs”), (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “accredited investors” (“Accredited Investors”) as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or (iii) reasonably believes to be non-U.S. persons under in reliance upon Regulation S under the Act. Pursuant to the Indenture, any and all Subsidiaries (as defined in the Indenture) of the Company, jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations under the Indenture and the Notes (such Subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor and such guarantee being referred to herein as a “Guarantee”). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture), all of the obligations under the Notes and the Indenture will be secured by a first priority lien and security interest in substantially all the Collateral (as defined in the Indenture) of the tangible Company; provided, the lien and intangible assets security interest in the Collateral will be contractually subordinated to the lien of the Company and agent that secures the North Carolina LLC Subsidiary Guarantor obligations under CitiSteel USA, Inc.’s (subject “CitiSteel”) $20.0 million senior revolving credit facility pursuant to prior ranking claims or such assets, including a prior ranking lien on accounts receivable, inventory and related assets by the lenders under the Credit Agreement). Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights credit agreement applicable to the Notes (the “Registration Rights Credit Agreement”), among CitiSteel, the lenders party thereto and U.S. Bank National Association, as Agent, to be executed on and dated the extent provided in the Intercreditor Agreement (as defined in the Indenture). The parties to the Credit Agreement will agree to an amendment to, or waiver of, certain provisions of the Closing Date. Pursuant to the Registration Rights Agreement, the Company will agree, among other things, to file with the Securities and Exchange Commission Credit Agreement (the “SECCredit Agreement Amendment”) (a) a registration statement under in order to permit the Act relating to Senior Secured Notes (the “Exchange Notes”) which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “Exchange Offer”), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement”) relating to the resale by certain holders of the Notes. If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “Private Exchange Notes”). If the Company fails to satisfy its obligations under the Registration Rights Agreement, they will be required to pay additional interest to the holders Company’s issuance of the Notes under certain circumstancesin the Offering and the Company’s granting of a lien on its assets securing the Notes. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights Intercreditor Agreement, the Notes, the Guarantees, the Exchange Notes and the Private Exchange Notes are referred to herein as the “Documents.”

Terms of Offering. The Initial Purchaser has advised the CompanyIssuers, and the Company understandsIssuers understand, that the Initial Purchaser will make offers to sell (the “"Exempt Resales”") some or all of the Notes purchased by the Initial Purchaser hereunder on the terms set forth in the Final Offering Circular, as amended or supplemented, to persons (the “"Subsequent Purchasers”") whom the Initial Purchaser (i) reasonably believes to be “"qualified institutional buyers” " (“"QIBs”") as defined in Rule 144A under the Act, as such may be amended from time to time, (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional “"accredited investors” " (“"Accredited Investors”") as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or (iii) reasonably believes to be non-U.S. persons under in reliance upon Regulation S under the Act. Pursuant to the Indenture, any and all Domestic Restricted Subsidiaries (as defined in the Indenture) of the Company, jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s 's obligations under the Indenture and the U.S. Notes (each such Subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor and such guarantee subsidiary being referred to herein as a “"Subsidiary Guarantor"). The Company and the Subsidiary Guarantors, jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each Holder of U.K. Notes and the Trustee, the payment and performance of the MSXI Limited's obligations under the Indenture and the U.K. Notes. Each guarantee under the U.S. Notes and U.K Notes is referred to herein as a "Guarantee”)". Pursuant to the terms of the Collateral Agreements (as defined in the Indenture), (i) all of the obligations under the U.S. Notes and the Indenture will be secured by the Subsidiary Guarantors and a first priority lien and security interest in substantially all of the tangible and intangible assets of the Company and the North Carolina LLC Subsidiary Guarantor Guarantors (subject to prior ranking claims or such assets, including except for a prior ranking lien on accounts receivable, inventory and related assets by the lenders under the Credit Agreement). Holders Agreement and other Permitted Liens as such term is defined in the Indenture) and (ii) all of the obligations under the U.K. Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “Registration Rights Agreement”), to be executed on and dated as of the Closing Date. Pursuant to the Registration Rights Agreementsecured by MSXI Limited, the Company will agree, among and the Subsidiary Guarantors and a security interest in all of the accounts receivable of MSXI Limited and substantially all of the assets of the Company and the Subsidiary Guarantors (except for a prior ranking lien by the lenders under the Credit Agreement and other things, to file with Permitted Liens as such term is defined in the Securities and Exchange Commission (the “SEC”) Indenture). (a) a registration statement under the Act relating to Senior Secured Notes Note Units (the “"Exchange Notes”Units") and the underlying Notes which shall be identical to the Notes Units (except that the Exchange Notes Units shall have been registered pursuant to such registration statement and statement, will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes Units (such offer to exchange being referred to as the “"Exchange Offer”"), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “"Shelf Registration Statement”") relating to the resale by certain holders of the Units and the underlying Notes. If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “Private Exchange Notes”). If the Company fails Issuers fail to satisfy its their obligations under the Registration Rights Agreement, they will be required to pay additional interest to the holders of the Notes under certain circumstances. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights Agreement, the Notes, the Guarantees, the Exchange Notes and the Private Exchange Notes are referred to herein as the “Documents.”

Terms of Offering. The Initial Purchaser has Purchasers have advised the Company, and the Company understands, that the Initial Purchaser Purchasers will make offers to sell (the “"Exempt Resales”") some or all of the Notes purchased by the Initial Purchaser Purchasers hereunder on the terms set forth in the Final Offering Circular, as amended or supplemented, to persons (the “"Subsequent Purchasers”") (i) outside the United States in compliance with Regulation S of the Act, or (ii) whom the Initial Purchaser Purchasers (iA) reasonably believes believe to be “"qualified institutional buyers” (“QIBs”) " as defined in Rule 144A under the ActAct ("QIBs"), as such Rule may be amended from time to time, or (iiB) reasonably believes believe (based upon written representations made by such persons to the Initial PurchaserPurchasers) to be institutional “"accredited investors” " (“"Accredited Investors”") as defined in Rule 501(a)(1), (2), (3) or (7) under the Act or (iii) reasonably believes to be non-U.S. persons under Regulation S under the Act. Pursuant to the Indenture, any all Domestic Restricted Subsidiaries of Eschelon Telecom, Inc. (the "Parent") as of the Closing Date (as hereinafter defined) and all future Domestic Restricted Subsidiaries (as defined in the Indenture) of the Parent (other than the Company), jointly and severally, shall fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s 's obligations under the Indenture and the Notes (such Subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor and each such guarantee being referred to herein as a “"Guarantee”"). Pursuant to the terms of the Collateral Agreements (as defined in the Indenture)Agreements, all of the Company's obligations under the Notes Indenture and the Indenture Notes will be secured by a first second priority lien and security interest in substantially all of the tangible and intangible assets of the Company Parent and the North Carolina LLC Subsidiary Guarantor its Domestic Restricted Subsidiaries (subject to prior ranking claims or such assets, including except for a prior ranking lien on accounts receivable, inventory and related assets by in favor of the lenders under a Credit Agreement and in favor of the Credit Agreementholders of certain other Permitted Liens) in favor of the Trustee, as secured party for itself and for the benefit of the holders of the Notes, the Exchange Notes and the Private Exchange Notes (the "Secured Parties"). Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “"Registration Rights Agreement”"), to be executed on and dated as of the Closing DateDate (as hereinafter defined). Pursuant to the Registration Rights Agreement, Parent and the Company will agree, among other things, to file with the Securities and Exchange Commission (the “"SEC”") (ai) a registration statement under the Act (the "Exchange Offer Registration Statement") relating to Senior Secured Notes senior second secured notes (the “"Exchange Notes”") which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “"Exchange Offer”"), and/or (bii) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “"Shelf Registration Statement”") relating to the resale by certain holders of the Notes. If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser Purchasers (the “"Private Exchange Notes”"). If the Company fails to satisfy its obligations under the Registration Rights Agreement, they it will be required to pay additional interest to the holders of the Notes under certain circumstances, as set forth in the Registration Rights Agreement. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights Agreement, the Notes, the Guarantees, the Exchange Notes and the Private Exchange Notes are collectively referred to herein as the “"Documents.”"

Terms of Offering. The Initial Purchaser has Purchasers have advised the Company, and the Company understands, that the Initial Purchaser Purchasers will make offers to sell (the “Exempt Resales”) some or all of the Notes purchased by the Initial Purchaser Purchasers hereunder on the terms set forth in the Final Offering CircularMemorandum, as amended or supplemented, to persons (the “Subsequent Purchasers”) whom the Initial Purchaser Purchasers (i) reasonably believes believe to be “qualified institutional buyers” (“QIBs”) as defined in Rule 144A under the Securities Act, as such may be amended from time to time, time or (ii) reasonably believes (based upon written representations made by such persons to the Initial Purchaser) to be institutional believe are not “accredited investorsU.S. persons” (“Accredited Investors”) as defined in Rule 501(a)(1), (2), (3Regulation S of the Securities Act) or (7) under the Act or (iii) reasonably believes to be non-U.S. persons under in reliance upon Regulation S under the Securities Act. Pursuant to the Indenture, Parent and any and all Subsidiaries (as defined in the Indenture) future subsidiary of the Company, jointly and severally, shall Parent or the Company may fully and unconditionally guarantee, on a senior secured basis, to each holder of the Notes and the Trustee, the payment and performance of the Company’s obligations of the Company under the Indenture and the Notes (each such Subsidiary future subsidiary being referred to herein as the North Carolina LLC Subsidiary Guarantor a “Guarantor” and each such guarantee being referred to herein as a “Guarantee”)) pursuant to the Indenture. Pursuant to the terms of the Collateral Agreements (as defined in the IndentureTime of Sale Document and the Final Offering Memorandum under the caption “Description of Notes”), all of the obligations under the Notes and the Indenture will be secured by a first priority lien and security interest in substantially all of the tangible and intangible assets of the Company and the North Carolina LLC Subsidiary Guarantor (subject to prior ranking claims or such assets, including a prior ranking lien on accounts receivable, inventory and related assets by the lenders under the Credit Agreement). Holders of the Notes (including Subsequent Purchasers) will have the registration rights set forth in the registration rights agreement applicable to the Notes (the “Registration Rights Agreement”), to be executed on and dated as of the Closing Date. Pursuant to the Registration Rights Agreement, the Company will agree, among other things, to file with the Securities and Exchange Commission (the “SEC”) (a) a registration statement under the Act relating to Senior Secured Notes (the “Exchange Notes”) which shall be identical to the Notes (except that the Exchange Notes shall have been registered pursuant to such registration statement and will not be subject to restrictions on transfer or contain additional interest provisions) to be offered in exchange for the Notes (such offer to exchange being referred to as the “Exchange Offer”), and/or (b) under certain circumstances, a shelf registration statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement”) relating to the resale by certain holders of the Notes. If required under the Registration Rights Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the “Private Exchange Notes”). If the Company fails to satisfy its obligations under the Registration Rights Agreement, they will be required to pay additional interest to the holders of the Notes under certain circumstancesGuarantor. This Agreement, the Indenture, the Collateral Agreements, the Registration Rights AgreementSecurities, the Notes, the Guarantees, the Exchange Notes Advance Escrow Agreement and the Private Exchange Notes Topaz Escrow Agreement (both as defined in the Time of Sale Document and the Final Offering Memorandum under the caption “Description of Notes”) and the Guarantees are collectively referred to herein as the “Transaction Documents.”