PURCHASE AGREEMENT

SECTION 1.                                                                                                                                          Authorization of Notes and Warrants

SECTION 2.                                                                                                                                          Sale and Purchase of Securities

SECTION 3.                                                                                                                                          Closing; Fees

SECTION 4.                                                                                                                                          Prepayment of Notes; Payments; Taxes

SECTION 5.                                                                                                                                          Conditions to Purchasers’ Obligations

SECTION 6.                                                                                                                                          Conditions to Company’s Obligations

SECTION 8.                                                                                                                                          Representations and Warranties of the Purchasers

SECTION 9.                                                                                                                                          Affirmative Covenants

SECTION 10.                                                                                                                                          Negative Covenants

SECTION 11.                                                                                                                                          Events of Default

SECTION 12.                                                                                                                                          Definitions

SECTION 13.                                                                                                                                          Appointment of Agent

SECTION 14.                                                                                                                                          Miscellaneous

2.03   Closings .  The sales of the Securities to be purchased by the Purchasers shall take place at the offices of Milbank, Tweed, Hadley & McCloy LLP, 1 Chase Manhattan Plaza, New York, New York, at 10:00 a.m., New York City time, in four closings as follows:

(a)   the Warrants shall be issued to the Purchasers on the date of this Agreement in consideration of the execution of this Agreement by the Purchasers;

(b)   $400,000 in principal amount of the Notes, subject to the satisfaction of the conditions set forth in Section 5, shall be purchased by the Purchasers, with each Purchaser purchasing its pro rata portion of such Notes, at a closing (the “ First Draw Down ”) on March 2, 2009 or on such other Business Day thereafter as may be agreed upon by the Company and LC;

(c)   $400,000 in principal amount of the Notes, subject to the satisfaction of the conditions set forth in Section 5, shall be purchased by the Purchasers, with each Purchaser purchasing its pro rata portion of such Notes, at a closing (the “ Second Draw Down ”) at a time as may be agreed upon by the Company and LC which shall be no earlier than 90 days after the First Draw Down; and

(d)   $400,000 in principal amount of the Notes, subject to the satisfaction of the conditions set forth in Section 5, shall be purchased by the Purchasers, with each Purchaser purchasing its pro rata portion of such Notes, at a closing (the “ Final Draw Down ,” and, together with the First Draw Down and the Second Draw Down, each a “ Draw Down ”) at a time as may be agreed upon by the Company and LC which shall be no earlier than 90 days after the Second Draw Down.

2.04   Expenses .  Subject to Section 14.01 , whether or not the Securities are issued, on the First Draw Down, the Company will pay to LC the reasonable fees and disbursements of legal counsel and consultants and such other expenses, including search fees, diligence fees and expenses, documentation fees and filing fees, incurred by LC or them in connection with the transactions contemplated herein, set forth in a statement (accompanied by reasonable detail) delivered to the Company on or prior to the date of the First Draw Down, and thereafter the Company will pay to LC, promptly upon receipt of a supplemental statement therefor (accompanied by reasonable detail), such additional reasonable fees and expenses, if any, as LC may incur in connection with the Second Draw Down and Final Draw Down.

SECTION 3.   Prepayment of Notes; Payments; Taxes .

3.01   Optional Redemption of Notes .  (a) the Company may voluntarily redeem at any time all of the Notes at the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the applicable redemption date without penalty or premium.

(b)   The Company will give each Holder written notice of each optional redemption under this Section 4.01 not less than 10 days and not more than 20 days prior to the date fixed for such redemption, in each case specifying such date, the aggregate principal amount of the Notes to be redeemed, and the principal amount of each Note held by such Holder to be redeemed.

3.02   Redemption Procedure,

(a)     In the case of each redemption of less than all of the outstanding Notes pursuant to Section 4.01, the Notes shall be redeemed pro rata among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for redemption, with adjustments, to the extent practicable, to compensate for any prior redemptions not made exactly in such proportion.

(b)    In the case of each redemption pursuant to Section 4.01, the principal amount of each Note to be redeemed shall mature and become due and payable on the date fixed for such redemption, together with interest on such principal amount accrued to such date and the applicable premium, if any.  From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and premium, if any, as aforesaid, interest on such principal amount shall cease to accrue.  Any Note paid or redeemed in full shall be surrendered to the Company and canceled and shall not be reissued, and no Note shall be issued in lieu of any redeemed principal amount of any Note.

SECTION 4.   Conditions to Purchasers’ Obligations .  The Purchasers’ obligation to purchase and pay for the Securities as set forth herein is subject to the fulfillment, to the Purchaser’s satisfaction or written waiver, on the date of this Agreement or before the First Draw Down, as indicated below, of the conditions set forth in Section 5.01 to 5.15 below, and the Purchasers’ obligations to purchase Notes at the Second Draw Down and Final Draw Down, respectively, is subject to the fulfillment, to the Purchasers’ satisfaction or written waiver, before the applicable Draw Down, as indicated below, of the conditions set forth in Section 5.16 :

4.01   Execution of Notes .  The Notes to be delivered at the applicable Draw Down shall have been executed by the Company, and delivered to the Purchasers, in the amounts, maturity and as otherwise provided herein.

4.02   Fees, Expenses, Etc .  The Company shall have paid to the Purchasers all costs, fees and expenses (including, without limitation, legal fees and expenses) payable to the Purchasers to the extent then due and invoiced, including, without limitation the fees and expenses under Sections 3.02 , and 14.01 hereof.

4.03   Opinions of Counsel .  The Purchasers shall have received favorable written opinions, each dated the date of the First Draw Down and addressed to the Purchasers of (i) Vinson & Elkins LLP, special counsel to the Company and the Delaware Sub, covering the matters set forth in Exhibit C-1 , and (ii) Woodburn and Wedge, special counsel to the Company, covering the matters set forth in Exhibit C-2 .

4.04   Corporate Documents; Proceedings; Etc .  (a)  The Purchasers shall have received an officer's certificate, dated the date of the First Draw Down, in the form of Exhibit D hereto, with appropriate insertions, together with copies of the Certificates of Incorporation and By-Laws (or equivalent organizational documents) of the Company and the Delaware Sub and the resolutions of the Company and the Delaware Sub referred to in such certificate, and the foregoing shall be reasonably acceptable to the Purchasers.

(b)   All corporate and legal proceedings and all material instruments and agreements in connection with the Transaction shall be reasonably satisfactory in form and substance to the Purchasers, and the Purchasers shall have received all information and copies of all documents and papers, including records of corporate proceedings, governmental approvals, good standing certificates and bring-down telegrams or facsimiles, if any, which the Purchasers reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper corporate or governmental authorities.

4.05   Indebtedness .  On the date of the First Draw Down, after giving effect to the consummation of the Transaction, the Company and its Subsidiaries, if any, shall have no outstanding Indebtedness except the Notes hereunder and the Indebtedness set forth on Schedule 5.06 , and no such party shall be in default in the observance or performance of any agreement or condition relating thereto.

4.06   Security Agreement .  The Security Agreement shall have been duly executed by the Company and the Delaware Sub and shall have been delivered to the Purchasers and shall be in full force and effect on the date of the applicable Draw Down.

4.07   Collateral Deliveries .  The Company and the Delaware Sub shall have authorized, executed and/or delivered or caused to be delivered each of the following to the Purchasers:

(i)   UCC Financing Statements (Form UCC-1 or UCC-2, as appropriate) in appropriate form for filing under the UCC and any other applicable Requirements of Law

(ii)   in each jurisdiction as may be necessary or appropriate to perfect the Liens created, or purported to be created, by the Security Documents;

(iii)   certified copies of Requests for Information (Form UCC-11), tax lien, judgment lien and pending lawsuit searches or equivalent reports or lien search reports, each of a recent date listing all effective financing statements, lien notices or comparable documents that name the Company or any of its Subsidiaries as debtor and that are filed in (w) the State of Nevada, (y) the State of Delaware, (y) those state and county jurisdictions in which any of the property of the Company or the Delaware Sub is located, and (z) the state and county jurisdictions in which the Company or any of its Subsidiaries’ principal place of business is located, none of which encumber the Collateral covered or intended to be covered by the Security Documents other than those encumbrances which constitute Permitted Liens; and

(iv)   with respect to each Real Property to the extent requested by the Agent, copies of Leases in which the Company and the Delaware Sub hold any interest.  With respect to each Real Property in which the Company and the Delaware Sub holds the tenant’s interest thereunder set forth on Schedule 5.08(iii) , the Company or the Delaware Sub, as the case may be, shall use commercially reasonable efforts to obtain a landlord lien waiver, access agreement and, to the extent applicable, consent in such form as the Agent shall reasonably require in order for the landlord to waive its statutory lien.

4.08   Adverse Change, Etc . (a) There shall not have occurred or been threatened from the date of this Agreement to the First Draw Down any change (or a series of changes) that the Purchasers shall determine has resulted, or could reasonably be expected to result, in a termination of the Shell Contract or a failure of the Company to complete the Initial Test Drilling under the Shell Contract successfully.

4.09   Litigation .  No litigation by any entity (private or governmental) shall be pending or threatened as of any Draw Down Date with respect to the Transaction, the Shell Contract or other transactions contemplated by this Agreement or any documentation executed in connection therewith, or which the Purchasers shall determine could reasonably be expected to have a materially adverse effect on the financial condition, business, operations or prospects of the Company.

4.10   Good Standing Certificates .  Good standing certificates of the Company and the Delaware Sub from the Secretary of State of their respective jurisdictions of organization, and certificates of good standing to conduct business as foreign corporations in each other state in which the Company or the Delaware Sub has significant operations or facilities and, to the extent generally available, certificates or other evidence of good standing as to payment of any applicable franchise or similar taxes from the appropriate taxing authority of each of such states, each to be dated a recent date prior to the date of the applicable Draw Down.

4.11   No Default .  No Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the issuance and sale of the Securities

4.12   Securities Laws .  The offering and sale of the Securities to the Purchasers shall have complied with all Requirements of Law and shall be exempt from registration under the Securities Act.

4.13   No Outstanding Registration Rights .  The Company shall not be subject to any obligation to file a registration statement with the SEC with respect to any securities of the Company other than the Registrable Securities as defined and provided in the Warrant except for such obligations in existence as of the date hereof arising from the Existing Registration Rights.

4.14   Subsequent Draw Down Conditions .  The conditions set forth in Sections 5.01, 5.03, 5.05, 5.06, 5.07, 5.09, 5.10, 5.11, 5.12, 5.13, and 5.14 shall be true and correct in all material respects as if required as of the date of such Draw Down. In addition, the Company shall have completed the Initial Test Drilling under the Shell Contract prior to the Second Draw Down and the Second Test Drilling under the Shell Contract prior to the Final Draw Down, and each of such tests shall have met the standards for success set forth in Section II of such contract.

SECTION 5.   Conditions to Company’s Obligations .  The Company’s obligation to sell the Securities to be delivered to the Purchasers on the date hereof and at each Draw Down is subject to the fulfillment, to the Company’s satisfaction or waiver, on or before such date, of the following conditions:

5.01   Sale of Securities .  Each of the Purchasers shall have executed this Agreement and on the date of each Draw Down shall have delivered payment to the Company in respect of its purchase of the Notes on the date of such Draw Down pursuant to Section 2.01 .

5.02   Representations and Warranties of the Purchasers .  The representations and warranties of the Purchasers contained in this Agreement and those otherwise made in writing by or on behalf of the Purchasers in connection with the Transaction shall be correct in all material respects when made and at the date of this Agreement or Draw Down, as applicable.

5.03   Corporate Status .  Each of the Company and the Delaware Sub is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite corporate power and authority to own, lease, use and operate its properties and to carry on its business as now operated and conducted.  The Company and each of its Subsidiaries is duly qualified as a foreign corporation or limited liability company to do business and is in good standing in each jurisdiction in which its ownership or use of property or the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect.  Neither the Company nor any its Subsidiaries is in violation of any provision of its respective certificate or articles of incorporation, articles of organization, partnership agreement, bylaws or other organizational or charter documents, as the same may have been amended.

5.04   Valid Agreement .  This Agreement has been duly and validly authorized, executed and delivered by each of the Company and the Delaware Sub and constitutes a binding obligation of the Company and the Delaware Sub enforceable against them in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

5.05   Capitalization .  As of the date of this Agreement, (a) the authorized capital of the Company consists of (i) 100,000,000 shares of Common Stock, par value $0.001 per share, of which 35,740,349 shares are outstanding  and had outstanding options and warrants to purchase up to 5,737,341 additional shares of the Company’s common stock in the aggregate and (ii) 10,000,000 shares of preferred stock, par value $0.01 per share, of which 100,000 shares have been designated as Series A Junior Participating Preferred Stock and (b) the authorized capital of the Delaware Sub consists of   (i) 50,000,000 shares of common stock, par value $0.0001 per share, of which 50,000,000 shares are outstanding and (ii) 20,000,000 shares of preferred stock, par value $0.0001 per share, of which 10,000,000 shares are designated as Series A Convertible Preferred Stock, none of which are outstanding.  All of the outstanding shares of capital stock of the Company and the Delaware Sub have been duly authorized, are validly issued, fully paid and nonassessable and were offered, sold and issued in compliance with all applicable federal and state securities laws and without violating any contractual obligation or other preemptive or similar rights.

5.06   Conflicts .  The execution, delivery and performance of this Agreement by the Company and the Delaware Sub and the consummation by the Company and the Delaware Sub of the transactions contemplated hereby will not (i) conflict with or result in a violation of any provision of the certificate of incorporation, as amended, of the Company or the Delaware

5.07   Accuracy of Securities Act Filings .  Since October 1, 2007, the Company has filed with the SEC all forms, reports, schedules, statements and other documents required to be filed by it through the date hereof under the Exchange Act or the Securities Act (all such documents, as supplemented and amended since the time of filing, collectively, the “ Company SEC Documents ”).  The Company SEC Documents, including without limitation all financial statements and schedules included in the Company SEC Documents, at the time filed (and, in the case of registration statements and proxy statements, on the dates of effectiveness and the dates of mailing, respectively, and in the case of any Company SEC Document amended or superseded by a filing prior to the date of this Agreement, then on the date of such amending or superseding filing), (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (ii) complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as applicable.  The audited consolidated financial statements of Company included in the Company’s Annual Report on Form 10-K for the fiscal year ended September 30, 2008 comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, were prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved, and present fairly in all material respects, the consolidated financial position of the Company and its consolidated subsidiaries as at the dates thereof and the consolidated results of their operations and cash flows for the periods then ended.

5.08   Authorization of Securities .  All of the Securities will have been duly authorized for issuance prior to the date of this Agreement.  The Warrant Shares, when issued and sold as set forth in the Warrants, will be validly issued, fully paid and non-assessable; and none of the Securities or  Warrant Shares will have been issued in violation of the preemptive rights of any security holders of the Company arising as a matter of law or under or pursuant to the Co

5.09   Adverse Litigation.   There is no litigation pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries that (i) adversely affects or challenges the legality, validity or enforceability of this Agreement, or (ii) would, if there were an unfavorable decision, have or reasonably be expected to have a Material Adverse Effect.  There has not been, and to the knowledge of the Company, there is not pending any investigation by the Commission involving the Company or any current or former director or officer of the Company (in his or her capacity as such).  The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Exchange Act or the Securities Act.

5.10   Taxes .  The Company and each Subsidiary has made or filed all federal, state and foreign income and all other material tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply.  There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.  Neither the Company nor the Delaware Sub has executed a waiver with respect to the statute of limitations relating to the assessment or collection of any foreign, federal, state or local tax.

5.11   Disclosure Controls .  The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act).

5.12   Investment Company .  Neither the Company nor the Delaware Sub is, and upon the issuance and following the transactions contemplated by this Agreement will be, an “investment company” as defined under the Investment Company Act of 1940 (“ Investment Company ”).  Neither the Company nor the Delaware Sub is controlled by an Investment Company.

5.13   Commissions .  Neither the Company nor the Delaware Sub has taken any action which would give rise to any claim by any person for brokerage commissions, transaction fees or similar payments relating to this Agreement or the transactions contemplated hereby.

5.14   Material Events .  Since December 31, 2008, there have not been any events, changes, occurrences or state of facts that, individually or in the aggregate, have had or would reasonably be expected to have a Material Adverse Effect, except as disclosed in the Company SEC Documents.

5.15   The Security Documents .  (a)  The Security Agreement is effective to create in favor of the Purchasers a legal, valid and enforceable security interest in the Collateral, and when the financing statements and other filings in appropriate form are filed as required by Section 5 of the Security Agreement, the Liens created pursuant to the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in such Collateral (other than the Intellectual Property, as defined in the Security Agreement), in each case prior and superior in right to any other person except as provided in this Agreement and subject to no other Liens except for Permitted Liens.  In addition to the financing statements and other filings contemplated in the preceding sentence, when the Security Agreement is filed in the United States Patent and Trademark Office and the United States Copyright Office, the Security Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title and interest of the grantors thereunder in the Intellectual Property Collateral (as defined in the Security Agreement), in each case prior and superior in right to any other person except as provided in this Agreement (it being understood that subsequent recordings in the United States Patent and Trademark Office and the United States Copyright Office may be necessary to perfect a lien on registered trademarks, trademark applications and copyrights acquired by the grantors after the date hereof), and subject to no other Liens except for Permitted Liens.

(b)   Each Security Document delivered pursuant to Section 9.07 will, upon execution and delivery thereof, be effective to create in favor of the Purchasers, a legal, valid and enforceable Lien on all of the Company’s and the Delaware Sub’s right, title and interest in and to the Collateral, and when such Security Document is filed or recorded in the appropriate offices as may be required under applicable law, such Security Document will constitute a fully perfected Lien on, and security interest in, all right, title and interest of the Company and the Delaware Sub in such Collateral, in each case prior and superior in right to any other Person except as provided in this Agreement, and subject to no other Liens.

5.16   Employee Benefit Plans .  Each of the Company and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder with respect to all Plans. Neither the Company nor any ERISA Affiliate maintains, contributes to, or has any liability with respect to a Pension Plan.

5.17   Environmental Matters .  To the best knowledge of the Company after due inquiry, neither the Company nor the Delaware Sub (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Claim, (iii) has received notice of any claim with respect to any Environmental Claim or (iv) knows of any basis for any Environmental Claim.

5.18   Representations and Warranties in Documents .  On each Draw Down Date, all representations and warranties of the Company and the Delaware Sub set forth in the

SECTION 6.   Representations and Warranties of the Purchasers .  In order to induce the Company to sell the Securities, each of the Purchasers, severally and not jointly,  makes the following representations and warranties as of the date hereof and as of the date of each Draw Down.

6.01   Purchaser Intent .  Each Purchaser represents that it is purchasing the Securities hereunder for its own account, not with a view to the distribution thereof or with any present intention of distributing or selling any of such Securities except in compliance with the Securities Act and any applicable state securities laws, provided that the disposition of such Purchaser’s property shall at all times be within its control.

6.02   Status of Purchasers .  Each Purchaser represents that it is an “accredited investor” within the meaning of Rule 501 of the Securities Act, with such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of a prospective investment in the Securities and that it is capable of bearing the economic risks of such investment.  Each Purchaser understands that no public market now exists for the Securities and there can be no assurance that a public market will ever exist for such Securities.  Each Purchaser represents that it has had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management and an opportunity to review the Company’s facilities.  Each Purchaser agrees to the imprinting of a legend on certificates representing all of the Securities held by it to the following effect:  “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.”

6.03   Authorization; No Contravention .  The execution, delivery and performance of this Agreement by each Purchaser:  (a) is within its power and authority and has been duly authorized by all necessary action and (b) does not contravene the terms of its organizational documents or any amendment thereof.

6.04   Binding Effect .  This Agreement has been duly executed and delivered by each Purchaser and this Agreement constitutes the legal, valid and binding obligation, enforceable against it in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law).

6.05   Broker’s, Finder’s or Similar Fees .  There are no brokerage commissions, finder’s fees or similar fees or commissions payable by the Company or the Delaware Sub in

SECTION 7.   Affirmative Covenants .  Each of the Company and the Delaware Sub hereby covenants and agrees that absent the prior written consent of the Required Holders:

7.01   Maintenance of Property; Insurance .  (a)  The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, (i) keep all property necessary in their respective business in good working order and condition (ordinary wear and tear and loss or damage by casualty or condemnation excepted), (ii) maintain insurance on all of their respective property in at least such amounts and against at least such risks as is consistent and in accordance with industry practice and (iii) furnish to the Holders, upon written request, full information as to the insurance carried.

(b)   The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, do all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, franchises, authorizations, patents, copyrights, trademarks and trade names material to the conduct of their respective business; maintain and operate such business in substantially the manner in which it is presently conducted and operated (and reasonable extensions thereof); comply with all applicable Requirements of Law (including any zoning, building, Environmental Law, ordinance, code or approval or any building permits or any restrictions of record or agreements affecting the Real Property) and decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted, except where the failure to comply could not reasonably be expected to have a Material Adverse Effect; and at all times maintain and preserve all property material to the conduct of such business and keep such property in good repair, working order and condition and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the business carried on in connection therewith may be properly conducted at all times; provided , however , that nothing in this Section 9.01(b) shall prevent (i) the withdrawal by the Company or any Subsidiary of its qualification as a foreign corporation in any jurisdiction where such withdrawal could not reasonably be expected to have a Material Adverse Effect; or (iii) the abandonment by the Company or any Subsidiary of any rights, franchises, licenses and patents that such Person reasonably determines are not useful to its business.

(c)   The Company will and will cause its Subsidiaries to, and the Delaware Sub will, at all times keep their respective property insured in favor of the Agent, and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by the Company or any of its Subsidiaries) (i) shall be endorsed to the Agent’s reasonable satisfaction for the benefit of the Agent (including, without limitation, by naming the Agent as loss payee or as an additional insured as its interest may appear together with a “standard” or “New York” lender’s loss payable endorsement), (ii) shall state that such insurance policies shall not be cancelled without 30 days’ prior written notice thereof by the respective insurer to the Agent, (iii) if reasonably available, shall provide that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Agent and the Holders, (iv) shall contain the standard non-contributing mortgagee clause endorsement in favor of the Agent with respect to hazard liability insurance, (v) shall, except in the case of public liability insurance, pr

(d)   vide that any losses shall be payable notwithstanding (A) any act or neglect of the Company or any of its Subsidiaries, (B) the occupation or use of the properties for purposes more hazardous than those permitted by the terms of the respective policy, (C) any foreclosure or other proceeding relating to the insured properties or (D) any change in the title to or ownership or possession of the insured properties and (vi) shall comply with the insurance requirements contained in each applicable Security Document.

(e)   If the Company, the Delaware Sub or any of the Company’s other Subsidiaries shall fail to maintain all insurance in accordance with this Section 9.01 , the Holders shall have the right (but shall be under no obligation), upon ten days’ advance notice to the Company or any of its Subsidiaries, as the case may be, to procure such insurance and the Company agrees to reimburse the Holders for all reasonable costs and expenses of procuring such insurance.

7.02   Compliance with Statutes, Etc .  The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all governmental bodies, domestic or foreign, in respect of the conduct of their respective business and the ownership of their respective property, except such noncompliances as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

7.03   Compliance with Environmental Laws .  The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, comply in all material respects, with all Environmental Laws applicable to their respective business and operations and to the ownership, operation or use of their respective business, assets and Real Property and other assets now or hereafter owned or operated by the Company or any of its Subsidiaries or the Delaware Sub, as applicable, will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance (except to the extent being contested in good faith, in which case, adequate reserves shall be maintained), and will keep or cause to be kept all such Real Property and other assets free and clear of any Liens imposed pursuant to such Environmental Laws.  None of the Company, the Delaware Sub or any of the Company’s other Subsidiaries will generate, use, treat, store, Release or dispose of, or permit the generation, use, treatment, storage, Release or disposal of Hazardous Materials on, under, at or from any Real Property and other assets now or hereafter owned or operated by the Company, the Delaware Sub or any of the Company’s other Subsidiaries, or transport or permit the transportation of Hazardous Materials to or from any such Real Property except in material compliance with all applicable Environmental Laws and reasonably required in connection with the operation, use and maintenance of any such Real Property or otherwise in connection with their businesses.

7.04   Employee Benefits .  The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, comply in all material respects with the applicable provisions of ERISA and the Code with respect to all Plans.

7.05   Performance of Obligations .  The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, perform all of their respective obligations under the terms of each mortgage, indenture, security agreement and other debt instrument by which they

7.06   Payment of Taxes .  The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, pay and discharge, all material (individually or in the aggregate) taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits, or upon any properties belonging to it or them, prior to the date on which penalties attach thereto, and all lawful claims for sums that have become due and payable which, if unpaid, might become a Lien not otherwise permitted; provided that none of the Company, the Delaware Sub or any of its other Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.

7.07   Further Assurances; Additional Collateral .  (a)  The Company will and will cause each of its Subsidiaries to, and the Delaware Sub will, execute any and all further documents, financing statements, agreements and instruments, and take all further action (including, without limitation, filing UCC and other financing statements, recording assignments of leases and rents, mortgages, deeds of trust and memoranda of leases and filings with the United States Patent and Trademark Office and the United States Copyright Office) that may be required under applicable law, or that the Required Holders may reasonably request, in order to effectuate the transactions contemplated by the Transaction Documents and in order to grant, preserve, protect and perfect the validity and first priority of the security interests created or intended to be created by the Security Documents.

(b)   The parties hereto acknowledge and agree that it is their intention that the Obligations shall be secured by, among other things, a first priority Lien, on substantially all the property of the Company and the Delaware Sub (including, without limitation, real and other property acquired subsequent to the date of the First Draw Down).  Any property acquired after the date of the First Draw Down (other than Real Properties having an aggregate value of $25,000 or less) by the Company or the Delaware Sub,  the Company or the Delaware Sub, as applicable, will, at its cost and expense, within 90 days of such acquisition, secure the Obligations by pledging or creating, or causing to be pledged or created, perfected first priority security interests with respect to such property.  Such security interests and Liens will be created under the Security Documents and other security agreements, mortgages, deeds of trust and other instruments and documents in form and substance satisfactory to the Agent, and the Company and the Delaware Sub shall deliver or cause to be delivered to the Agent all such instruments and documents (including, without limitation, legal opinions, title insurance policies, surveys, appraisals, certificates of title, consents, lien waivers, subordination, non-disturbance and attornment agreements and lien searches) as the Required Holders shall reasonably request to evidence compliance with this Section 9.07 .  The Company and the Delaware Sub shall take all further action of the type described in Section 9.07(a ) in order to grant, preserve, protect and perfect such Lien and security interest.

(c)   Each of the Company and the Delaware Sub agrees, from time to time, to provide such evidence as the Agent shall reasonably request as to the perfection and priority status of each security interest and Lien contemplated herein.

(d)   Negative Covenants.  Each of the Company and the Delaware Sub hereby covenants and agrees that, absent the prior written consent of the Required Holders:

7.08   Liens .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, (i) create, incur, assume or permit to exist any Liens upon or with respect to any Collateral and (ii) create, incur, assume or permit to exist any Lien upon or with respect to any property of the Company, the Delaware Sub or any of the Company’s other Subsidiaries, whether now owned or hereafter acquired, or on any income or revenues or rights in respect of any thereof, except for the following (the “ Permitted Liens ”):

(i)   inchoate Liens for taxes, assessments or governmental charges or levies not yet due and payable or Liens for taxes, assessments or governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves have been established in accordance with GAAP (or the equivalent thereof in any country in which a foreign Subsidiary is doing business, as applicable);

(ii)   Liens in respect of property of the Company or any of its Subsidiaries imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s and mechanics’ liens and other similar Liens arising in the ordinary course of business, and (x) which do not in the aggregate materially detract from the value of the property of the Company or such Subsidiary and do not materially impair the use thereof in the operation of the business of the Company or such Subsidiary or (y) which are being contested in good faith by appropriate proceedings, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien;

(iii)   Liens created pursuant to the Security Documents;

(iv)   Liens arising pursuant to licenses, leases or subleases granted to other Persons in the ordinary course of business not materially interfering with the conduct of the business of the Company and its Subsidiaries taken as a whole;

(v)   with respect to the Company only, Liens arising pursuant to Capitalized Lease Obligations and Purchase Money Obligations or security interests securing Indebtedness representing the purchase price (or financing of the purchase price within 90 days after the respective purchase) of assets acquired after the First Draw Down Date; provided that (x) any such Liens attach only to the assets so purchased and do not encumber any other asset of the Company or any of its Subsidiaries, (y) the Indebtedness secured by any such Lien (including refinancings thereof) does not exceed 100% of the lesser of the fair market value or the purchase price of the property being purchased at the time of the incurrence of such Indebtedness and (z) the aggregate outstanding principal amount of all Indebtedness secured by Liens permitted by this clause (vi) shall not at any time exceed $25,000;

(vi)   easements, rights-of-way, restrictions (including zoning restrictions), covenants, encroachments, protrusions and other similar charges or encumbrances, and minor title deficiencies, in each case whether now or hereafter in existence, not securing Indebtedness and not materially interfering with the conduct of the business of the Company and its Subsidiaries taken as a whole;

(vii)   Liens arising from precautionary UCC financing statement filings regarding operating leases entered into by the Company in the ordinary course of business;

(viii)   Liens arising out of judgments or awards in respect of which the Company or any of its Subsidiaries shall in good faith be prosecuting an appeal or proceedings for review in respect of which there shall have been secured a subsisting stay of execution pending such appeal or proceedings, provided that the aggregate amount of all such judgments or awards does not exceed $25,000 at any time outstanding;

(ix)   Liens (other than any Lien imposed by ERISA) (x) incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, (y) to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations incurred in the ordinary course of business (exclusive of obligations for the payment of borrowed money) or (z) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; and

(x)   Liens consisting of set-off of a customary nature or bankers’ liens on amounts on deposit, whether arising by contract or operation of law, incurred in the ordinary course of business.

7.09   Consolidation, Merger, Purchase or Sale of Assets, Etc .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, wind up, liquidate or dissolve their respective affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of their respective property, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property (other than purchases or other acquisitions of inventory, materials, equipment and intangible assets in the ordinary course of business or reinvestments in assets of any Person (or agree to do any of the foregoing at any future time), except that:

(i)   Capital Expenditures by the Company and its Subsidiaries shall be permitted to the extent they are made in the ordinary course of business;

(ii)   each of the Company and its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any property which, in the reasonable judgment of such Person, is obsolete, worn out or otherwise no longer useful in the conduct of such Person’s business and (y) sell, lease or otherwise dispose of any other property; pr

(iii)   vided that the aggregate net cash proceeds of all assets subject to sales or other dispositions pursuant to this sub-clause (ii)(y) shall not exceed $25,000 in the aggregate for any four consecutive fiscal quarters of the Company;

(iv)   investments may be made to the extent permitted by Section 10.05 ;

(v)   each of the Company and its Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 10.04 (v) );

(vi)   each of the Company and its Subsidiaries may make sales or transfers of inventory in the ordinary course of business that are consistent with past practices;

(vii)   the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any bulk sale);

(viii)   the disposition of Cash Equivalents and other investments to the extent permitted under Section 10.05(ii) ; and

(ix)   the Company and its Subsidiaries may sell non-core assets; provided that the aggregate amount of such sales shall not exceed $25,000 in any fiscal year of the Company, the Company shall receive consideration equal to the fair market value (as reasonably determined by the board of directors of the Company or the senior management thereof) of the property sold.

7.10   Dividends .  The Company will not authorize, declare or pay any Dividends.

7.11   Indebtedness .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, contract, create, incur, assume or suffer to exist any Indebtedness, except:

(i)   Indebtedness incurred pursuant to this Agreement;

(ii)   accrued expenses and trade accounts payable incurred in the ordinary course;

(iii)   [Reserved];

(iv)   Indebtedness under guarantees, surety, performance bonds, letter of credit obligations to provide security for worker’s compensation claims and bank overdrafts, in each case incurred in the ordinary course of business; provided that any obligations arising in connection with such bank overdraft Indebtedness is extinguished within five Business Days;

(v)   Indebtedness consisting of guarantees (y) by the Company of Indebtedness, leases and other obligations permitted to be incurred by any of its Subsidiaries under this Agreement, and (z) by any Subsidiary of the Company of the existing Indebtedness, leases and other obligations permitted to be incurred by the Company or other Subsidiaries of the Company under this Agreement; and

7.12   Advances, Investments and Loans .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, directly or indirectly, lend money or credit or make advances to any Person, or purchase or acquire any stock, obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract, or hold any cash or Cash Equivalents or Foreign Cash Equivalents (each of the foregoing an “ Investment ” and, collectively, “ Investments ”), except that the following shall be permitted:

(i)   the Company and its Subsidiaries (other than the Delaware Sub) may acquire and hold accounts receivable, notes receivable, retention balances, deposits and advances owing to any of them;

(ii)   the Company and its Subsidiaries may acquire and hold cash and Cash Equivalents;

(iii)   the Company and its Subsidiaries may purchase, sell or transfer assets (including equity) to the extent permitted by Section 10.02 ; and

(iv)   the Company and its Subsidiaries may acquire and hold promissory notes and other non-cash consideration issued by the purchaser of assets in connection with a sale of such assets to the extent permitted by Section 10.02(ii) ;

7.13  Transactions with Affiliates .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, enter into any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of the Company, the Delaware Sub or any of the Company’s other Subsidiaries, other than in the ordinary course of business and on terms and conditions substantially as favorable to the Company, the Delaware Sub or such Subsidiary as would reasonably be obtained by the Company, the Delaware Sub or such Subsidiary at that time in a comparable arm’s-length transaction with a Person other than an Affiliate, except, solely with respect to the Company ¹ , that:

¹ For purposes of this and certain other negative covenants, we assume the Delaware Sub has no operations. V&E to identify any exceptions that are applicable to the Delaware Sub.

(i)   customary fees paid to, and reimbursement of out-of-pocket expenses of, and indemnification and similar arrangements may be made with, members of the Board of Directors of the Company; and

(ii)   the issuance by the Company of its capital stock or options exercisable for its capital stock.

7.14   Limitation on Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements; Etc .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not:

(i)   amend or modify, or permit the amendment or modification of, any provision of any agreement (including, without limitation, the Shell Contract, any purchase agreement, indenture, loan agreement or security agreement) relating thereto; or

(ii)   amend, modify, change or replace their respective Certificates of Incorporation (including, without limitation, by the filing or modification of any certificate of designation) or By-Laws (or equivalent organizational documents) or any agreement entered into by the Company or the Delaware Sub, as applicable, with respect to the capital stock (or equivalent interests) of the Company or the Delaware Sub, as applicable, or enter into any new agreement with respect to its capital stock, other than any amendments, modifications, changes or replacements pursuant to this clause (ii) or any such new agreements pursuant to this clause (ii) which do not adversely affect in any material respect the interests of the Holders.

7.15   Limitation on Certain Restrictions on Subsidiaries .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Subsidiary or the Delaware Sub, as the case may be, to

(a)   pay dividends or make any other distributions on its capital stock or any other interest or participation in its profits owned by the Company or any Subsidiary of the Company, or pay any Indebtedness owed to the Company or a Subsidiary of the Company,

(b)   make loans or advances to the Company or any of the Company’s Subsidiaries or

(c)   transfer any of its properties or assets to the Company or any of the Company’s Subsidiaries,

7.16   Limitation on Creation of Subsidiaries .  Neither the Company nor the Delaware Sub will establish, create or acquire any additional Subsidiaries without the prior written consent of the Required Holders.

7.17   Business .  The Company will not and will not permit any of its Subsidiaries to, and the Delaware Sub will not, engage (directly or indirectly) in any business other than as currently engaged and other businesses reasonably related thereto.

SECTION 8.   Events of Default .  (a)  Upon the occurrence of any of the following specified events (each an “ Event of Default ”):

8.01   Payments .  The Company shall (i) default in the payment when due of any principal of any Note or (ii) default, and such default shall continue unremedied for three or more Business Days, in the payment when due of any interest on any Note, or any Fees or any other amounts owing hereunder; or

8.02   Representations, Etc .  Any representation, warranty or statement made by the Company, the Delaware Sub or any of the Company’s other Subsidiaries herein or in any other Transaction Document or in any certificate delivered pursuant hereto or thereto shall prove to be untrue in any material respect (or, with respect to any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect,” shall prove to be untrue in any respect) on the date as of which made or deemed made; or

8.03   Covenants .  (i) The Company, the Delaware Sub or any of the Company’s other Subsidiaries shall default in the due performance or observance by it of any term, covenant or agreement contained in 9.08 or Section 10 , (ii) the Company or the Delaware Sub shall default in the due observance or performance of the covenants to be observed or performed pursuant to Section 9.01 and such default shall continue for a period of (x) five Business Days after delivery by the Required Holders or the Agent (at the request of the Required Holders) of notice thereof and (y) 30 days, or (iii) the Company, the Delaware Sub or any of the Company’s other Subsidiaries shall default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement and such default shall continue unremedied for a period of 30 days after notice thereof is given to the Company, the Delaware Sub or such other Subsid

8.04   Default Under Other Agreements .  The Company, the Delaware Sub or any of the Company’s other Subsidiaries shall:

(i)    default in any payment of any Indebtedness (other than the Obligations) beyond the period of grace, if any, provided in the instrument or agreement under which such Indebtedness was created or

(ii)    default in the observance or performance of any agreement or condition relating to any Indebtedness (other than the Obligations) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (determined without regard to whether any notice is required), any such Indebtedness to become due prior to its stated maturity or

(iii)    any Indebtedness (other than the Obligations) of the Company, the Delaware Sub or any of the Company’s other Subsidiaries shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof;

8.05   Bankruptcy, Etc .  The Company, the Delaware Sub or any of the Company’s other Subsidiaries (other than an Immaterial Subsidiary) shall commence a voluntary case concerning itself under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “ Bankruptcy Code ”); or an involuntary case is commenced against the Company or any of its Subsidiaries (other than an Immaterial Subsidiary) and the petition is not controverted within 15 days, or is not dismissed within 60 days, after commencement of the case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of the Company, the Delaware Sub or any of the Company’s other Subsidiaries (other than an Immaterial Subsidiary) or the Company, the Delaware Sub or any of the Company’s other Subsidiaries (other than an Immaterial Subsidiary) commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Company, the Delaware Sub or any of the Company’s other Subsidiaries (other than an Immaterial Subsidiary) or there is commenced against the Company, the Delaware Sub or any of the Company’s other Subsidiaries (other than an Immaterial Subsidiary) any such proceeding which remains undismissed for a period of 60 days, or the Company, the Delaware Sub or any of the Company’s other Subsidiaries (other than an Immaterial Subsidiary) is adjudicated insolvent or bankrupt; or any order of relief or other order approving any such case or proceeding is entered; or the Company, the Delaware Sub or any of the

8.06   ERISA .  Either the Company or any ERISA Affiliate shall maintain, contribute to, or have any liability with respect to a Pension Plan; or

8.07   Security Documents .  At any time after the execution and delivery thereof, any of the Security Documents shall cease to be in full force and effect, or shall cease in any material respect to give the Agent for the benefit of the Secured Parties the liens, rights, powers and privileges purported to be created thereby (including, without limitation, a perfected security interest in, and lien on, all of the Collateral), in favor of the Agent, superior to and prior to the rights of all third Persons (except as permitted by Section 10.01 ), and subject to no other Liens (except as permitted by Section 10.01 ), or the Company, the Delaware Sub or any of the Company’s other Subsidiaries shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to any of the Security Documents and such default shall continue beyond any grace period (if any) specifically applicable thereto pursuant to the terms of such Security Document; or

8.08   Judgments .  One or more judgments or decrees shall be entered against the Company, the Delaware Sub or any of the Company’s other Subsidiaries and such judgments and decrees either shall be final and non-appealable or shall not be vacated, discharged or stayed for any period of 30 consecutive days, and the aggregate amount of all such judgments (to the extent not paid or to the extent not covered by insurance provided by a carrier that has acknowledged coverage) equals or exceeds $25,000 (or in the case of non-monetary judgments or decrees, has or is reasonably likely to have a Material Adverse Effect); or

8.09   Change of Control .  A Change of Control shall occur; or

8.10   Conviction .  The Company, the Delaware Sub or any of the Company’s other Subsidiaries shall be convicted under any criminal law that could lead to a forfeiture of any property of such entity.

8.11   Non-Performance of the Shell Contract .  Either the Company or Shell Exploration & Production Co. shall have ceased performing its respective obligations in accordance with the terms of the Shell Contract for a period of thirty (30) days.

(i)    declare the principal of and any accrued interest in respect of all Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company and each of its Subsidiaries; and

(ii)    enforce all of the liens and security interests created pursuant to the Security Documents.

SECTION 9.   Definitions

9.01   Defined Terms .  As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

(a)   the direct or indirect sale, lease, transfer conveyance or other disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole;

(b)   any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the “beneficial owner” (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of more than 20% of the equity interests of the Company having the right to vote for the election of members of the board of directors thereof;

(c)   individuals who on the date of this Agreement constitute the board of directors of the Company (together with any new directors whose appointment by the board of directors of the Company or whose nomination by the board of directors of the Company for election by the Company’s stockholders was approved by a vote of at least a majority of the members of the board of directors then in office who either were members of the board of directors on the First Draw Down Date or whose appointment or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the board of directors then in office; and

(d)   any change in control (or similar event, however denominated) with respect to the Company or any of its Subsidiary shall occur under and as defined in any indenture or agreement in respect of Indebtedness to which the Company or any of its Subsidiary is a party.

SECTION 10.   Appointment of Agent

10.01   Appointment .  Each Holder hereby irrevocably appoints the Agent as its agent hereunder and under the other Transaction Documents, and to act as the Collateral Agent on behalf of the Holders hereunder and under the other Transaction Documents, and in each case authorizes the Agent to take such actions on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.  Any reference herein to the Agent shall include the Agent in its capacity as Agent hereunder and as Collateral Agent under any Transaction Document.  Each Holder does hereby make, constitute and appoint the Agent its true and lawful attorney-in-fact with full powers of substitution and resubstitution for such Holder and in its name, place and stead, in any and all capacities, to execute for such Holder and on its behalf any document or agreement for which the Agent is empowered to act on behalf of such Holder under this Section 13 , granting to the Agent full power and authority to do and perform each act requisite and necessary to be done, as fully to all intents and purposes as the Holder could do in person, provided that such power shall be granted only to the extent necessary to undertake the actions permitted to be done or taken by the Agent under this Section 13 .  Each of the Holders hereby irrevocably authorizes, and each Holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, the Agent to take such action on their behalf under the provisions of this Agreement, the other Transaction Documents and any other instruments and agreements referred to herein or therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Agent by the terms hereof and thereof and such other powers as are reasonably incidental hereto and thereto.  The Agent may perform any of its duties hereunder by or through its officers, directors, agents, employees or

10.02   Rights of Agent .  With respect to its obligation to purchase Notes under this Agreement, the Agent shall have the rights and powers specified herein for a “Holder” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “Holders,” “Required Holders,” “holders of Notes” or any similar terms shall, unless the context clearly otherwise indicates, include the Agent in its individual capacity.  The Agent and its Affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to, the Company, the Delaware Sub or any of the Company’s other Subsidiaries or Affiliates (or any Person engaged in similar business with the Company or any Subsidiary or Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from the Company, the Delaware Sub or any of the Company’s other Subsidiaries or Affiliates for services in connection with this Agreement and otherwise without having to account for the same to the Holders.

10.03   Administration of the Collateral .  The Agent as Collateral Agent shall administer the Collateral and any Lien thereon for the benefit of the Holders in the manner provided herein and in the Security Agreement and in any other related Transaction Documents; provided , however , that in the event of conflict between the provisions relating to administration of Collateral included in this Agreement and those included in the Security Agreement, the latter shall prevail.  The Agent shall exercise such rights and remedies with respect to the Collateral as are granted to it hereunder and as Collateral Agent under the Security Agreement and related documents and applicable law and as shall be directed by the Required Holders.  Upon payment in full of all Obligations under the Transaction Documents, the Agent and its Affiliates shall promptly release any and all Liens, Collateral and other security arrangements entered into in connection with this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby.

10.04   Duties of Agent .  The Agent shall not have any duties or obligations except those expressly set forth herein and in the other Transaction Documents.  Without limiting the generality of the foregoing, (a) the Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Transaction Documents that the Agent is required to exercise in writing by the Required Holders, and (c) except as expressly set forth herein and in the other Transaction Documents, the Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company, the Delaware Sub or any of the Company’s other Subsidiaries that is communicated to or obtained by the bank serving as Agent or any of its Affiliates in any capacity.  The Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Holders or in the absence of its own gross negligence or willful misconduct.  The Agent shall be deemed not to have knowledge of any Default unless and until notice thereof is given to the Agent by the Company, the Delaware Sub or a Holder, and the Agent shall not be responsible for or have any duty to ascertain or inquire into (v) any statement, warranty or representation made in or in connection with this Agreement or any other Transaction Document, (w) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (x) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (y) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Transaction Document or any other agreement, instrument or document, or (z) the satisfaction of any condition set forth herein or therein, other than to confirm receipt of items expressly required to be delivered to the Agent.  In the event that the Agent receives such a notice, the Agent shall give prompt notice thereof to the other Holders and the  (if received from a Holder) or to the Holders (if received from the Company or the Delaware Sub).

10.05   Reliance by Agent .  The Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person.  The Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon.  The Agent may consult with legal counsel (who may be counsel for the Com