Common use of Certain Procedures Clause in Contracts

Certain Procedures. The holder of this Note that is entitled to receive shares of Common Stock issuable upon conversion of this Note pursuant to Section 6(a), (b) or (c), as applicable, shall be deemed to have converted this Note as of (i) in the event of a conversion pursuant to Section 6(a), the time of the closing and funding of the Qualified Equity Offering during the QEO Period, (ii) in the event of a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving of the holder’s notice of conversion pursuant to Section 6(c) (as applicable, the “Conversion Date”). As of the Conversion Date, the Post-QEO Converted Amount, the Maturity Date Converted Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by the holder and whether this Note is surrendered to Debtor at the QEO Conversion Price or the Issuance Date Conversion Price (as the same may be adjusted pursuant to Section 7 hereof), as applicable; provided, however, that Debtor shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor from any loss incurred by it in connection therewith. Thereupon, there shall be issued and delivered to such holder, promptly at such office and in the name of such holder as shown hereon, a certificate or certificates for the number of shares of Common Stock into which the Note surrendered was convertible as of such Conversion Date, and with respect to partial conversions, a new note in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a holder of record of such shares of Common Stock as of the closing of business on the applicable Conversion Date.

Certain Procedures. The holder (a) Promptly upon becoming aware of this Note the existence of any Claim as to which Indemnitee may be indemnified for Expenses or Indemnifiable Costs and as to which Indemnitee desires to obtain indemnification, Indemnitee shall notify the Chairman of the Board of the Corporation, but the failure to promptly notify the Chairman of the Board shall not relieve the Corporation from any obligation hereunder, except and to the extent that such failure has materially and irrevocably harmed the Corporation’s ability to defend against such Claim pursuant to Section 7(d) hereof. Upon receipt of such request, accompanied by such documentation and information as is not privileged or otherwise protected from disclosure, is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to receive shares indemnification, the Chairman of Common Stock issuable upon conversion the Board shall promptly advise the members of this Note pursuant the Board of Directors of the request and that the establishment of a Determining Body with respect thereto will be a matter to Section 6(a)be considered at the next regularly scheduled meeting of the Board. If a meeting of the Board of Directors is not regularly scheduled within 30 calendar days of the date the Chairman of the Board receives notice of the Claim, (b) the Chairman of the Board shall cause a special meeting of the Board of Directors to be called within such period in accordance with the provisions of the Corporation’s By-laws. The Determining Body shall be established at such regularly scheduled meeting or (c)special meeting, as applicablethe case may be. After the Determining Body has been established, the Chairman of the Board shall inform Indemnitee of the constitution of the Determining Body. At any time after the Determining Body has been convened, it shall have the power, but not the obligation, to determine whether or not Indemnitee has met the Standard of Conduct and, at such time the determination is made, the Determining Body shall advise Indemnitee of its determination. The Determining Body shall make its decision as to whether the Standard of Conduct has been met by the Indemnitee no later than 30 days following the date that a final judgment has been entered, or a settlement has been agreed, of the Claim (the “Determination Deadline Date”). If Indemnitee shall have made a good faith effort to comply with any requests of the Determining Body for relevant information related to the Claim, including reasonable requests for additional information reasonably requested by the Determining Body, any failure of the Determining Body to make a determination by the Determination Deadline Date as to whether the Standard of Conduct was met shall be deemed to have converted this Note as be a determination that the Standard of (i) in the event of a conversion pursuant to Section 6(a), the time of the closing and funding of the Qualified Equity Offering during the QEO Period, (ii) in the event of a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving of the holder’s notice of conversion pursuant to Section 6(c) (as applicable, the “Conversion Date”). As of the Conversion Date, the Post-QEO Converted Amount, the Maturity Date Converted Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action Conduct was met by the holder and whether this Note is surrendered to Debtor at the QEO Conversion Price or the Issuance Date Conversion Price (as the same may be adjusted pursuant to Section 7 hereof), as applicable; provided, however, that Debtor shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor from any loss incurred by it in connection therewith. Thereupon, there shall be issued and delivered to such holder, promptly at such office and in the name of such holder as shown hereon, a certificate or certificates for the number of shares of Common Stock into which the Note surrendered was convertible as of such Conversion Date, and with respect to partial conversions, a new note in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a holder of record of such shares of Common Stock as of the closing of business on the applicable Conversion DateIndemnitee.

Certain Procedures. The holder AGR will transmit by wire or, if requested by Seller, by check the Advanced Amount of this Note that the Purchase Price for each Batch of Purchased Receivables on the next business day following the business day of AGR's receipt of the Assignment covering such Batch executed by the Seller or, if such Assignment is entitled received after 1:00 p.m., on the second business day thereafter (a "Purchase Date"). All wire and other transfer charges shall be for the account of the Seller. Upon such payment, the Seller will have sold to receive shares AGR all of Common Stock issuable upon conversion the Seller's right, title and interest in such Batch of this Note pursuant Purchased Receivables and other Transferred Property and in any proceeds thereof, and AGR will be the sole and absolute owner thereof and will own all of the Seller's rights and remedies represented by such Batch of Purchased Receivables (including, without limitation, rights to Section 6(adirect or indirect payment from the respective Payors on such Batch of Purchased Receivables), and AGR will have obtained all of the Seller's rights under all guarantees, assignments and securities with respect to each Purchased Receivable included in such Batch. The Seller shall execute (bor cause to be executed) all required Uniform Commercial Code releases or financing statements in favor of AGR. Collection and Servicing of Purchased Receivables. Prior to the sale of any Batch of Receivables hereunder, the Seller shall establish an account for all of its Receivables (cthe "Lockbox Account"), at Summit Bank or at such other bank as applicableAGR may approve in writing (the "Lockbox Bank"), and shall enter into an agreement relating thereto in form and substance satisfactory to AGR and the Lockbox Bank. The Lockbox Account shall be deemed to have converted this Note as of (i) in the event of a conversion pursuant to Section 6(a), the time of the closing and funding of the Qualified Equity Offering during the QEO Period, (ii) in the event of a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving of the holder’s notice of conversion pursuant to Section 6(c) (as applicable, the “Conversion Date”). As of the Conversion Date, the Post-QEO Converted Amount, the Maturity Date Converted Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by the holder and whether this Note is surrendered to Debtor at the QEO Conversion Price or the Issuance Date Conversion Price (as the same may be adjusted pursuant to Section 7 hereof), as applicable; provided, however, that Debtor shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor from any loss incurred by it in connection therewith. Thereupon, there shall be issued and delivered to such holder, promptly at such office and account in the name of such holder as shown hereonAGR or its designee, a certificate or certificates and shall be the sole and exclusive property of AGR and its designee. All charges in connection with the Lockbox Account shall be for the number account of shares the Seller. In the event that the Seller directly receives any payments in respect of Common Stock into which Purchased Receivables, the Note surrendered was convertible as Seller shall within two (2) Business Days after receipt thereof (i) deposit in the Lockbox Account all such payments on Purchased Receivables and (ii) send to AGR or its designee all remittance advices accompanying such payments or, if no such remittance advice accompanied any such payment, notice of such Conversion Datethe amount so received. Upon AGR's receipt of a remittance advice from the Lockbox Bank confirming that it has received payments on Receivables purchased, and funds will be posted by AGR (the "Application of Payments"), to the specific Receivable within AGR's respective Batch. Such funds will be retained by AGR until the aggregate Break-even Point with respect to partial conversionssuch Batch is reached. Thereafter, such amounts shall be payable to Seller as the Seller Interest promptly after receipt thereof (subject, in each case, to permitted offsets under this Agreement) on each Friday or if such day is not a new note business day, the next succeeding business day (each a "Settlement Date"). On each Settlement Date, AGR will deliver to the Seller a report (the "Settlement Report") substantially in the form of this Note for the remaining principal balance outstanding, Exhibit B hereto. Each Settlement Report will set forth AGR's Application of Payments with respect to a Batch together with accrued and unpaid interesta list of Ineligible Receivables (as defined in Section 6 below) included in such Batch. Such Settlement Report may also list those Receivables included in such Batch with respect to which AGR has been unable to make a determination as to their continuing eligibility (the "Outstanding Receivables"). In the event that Seller has not disputed the Application of Payments contained in any Settlement Report within thirty (30) business days after its receipt by Seller, not so converted. Any person whose name the certificate for shares then all such undisputed Application of Common Stock is to be issued Payments shall be considered deemed final. The Seller shall be responsible for servicing and collection of Purchased Receivables subject to have become the terms and conditions of a holder of record of such shares of Common Stock Servicing Agreement, dated as of August __, 1997 by and between the closing of business on Seller, as primary servicer (the applicable Conversion Date"Primary Servicer"), and AGR. AGR shall have the right, upon the terms and conditions set forth in such Servicing Agreement, to terminate such Servicing Agreement and to designate a "Back-up Servicer" which may be AGR.

Certain Procedures. The holder of this Note that is entitled to receive shares of Common Stock issuable upon conversion of this Note pursuant to Section 6(a), (b) or (c), as applicable, shall be deemed to have converted this Note as of (i) in In the event of a conversion pursuant to Section 6(a), that the time of Investor or the closing and funding of the Qualified Equity Offering during the QEO Period, (ii) in the event of a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving of the holder’s notice of conversion pursuant to Section 6(c) Company (as applicable, the “Conversion Date”). As of "CLAIMANT") desires to make a claim against the Conversion Dateother party to this Agreement (the "INDEMNITOR") under this Section 6, the Post-QEO Converted AmountClaimant shall give prompt written notice to the Indemnitor of any actions, suits, proceedings, and demands at any time instituted or made against Claimant (or, with respect to clause (ii) of Section 6.1(a), against the Maturity Date Converted Amount Company), and of any loss, cost, damage or expenses incurred by Claimant (or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by Company) and for which the holder and whether this Note is surrendered Claimant claims a right to Debtor at the QEO Conversion Price or the Issuance Date Conversion Price (as the same may be adjusted pursuant to Section 7 hereof), as applicableindemnification hereunder; provided, however, that Debtor the Claimant's failure to promptly give such notice shall not be obligated affect the obligations of an Indemnitor under this Section 6 except to issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered extent that any defense or counterclaim otherwise available to Debtor, as hereinafter provided, Indemnitor shall have been prejudiced or the holder of this Note notifies Debtor, as hereinafter provided, that such Note Indemnitor's obligations shall otherwise have been lostincreased as a consequence of such failure. The Claimant shall, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor at the time of giving such notice, if the Indemnitor shall agree in writing that it would have responsibility to indemnify Debtor from any loss incurred by it in connection therewith. Thereuponunder this Section 6, there shall be issued and delivered give the Indemnitor full authority to defend, adjust, compromise or settle the action, suit, proceeding or demand on which such holdernotice is based, promptly at such office and in the name of the Claimant or otherwise as the Indemnitor shall elect unless, (a) there is a conflict or potential conflict of interest between the Claimant and the Indemnitor in such holder action, suit or proceeding, as shown hereonadvised by Claimant's counsel, a certificate or certificates for (b) in the number reasonable judgment of shares of Common Stock into which the Note surrendered was convertible as Claimant, an adverse determination of such Conversion Dateaction, and with respect suit or proceeding could be materially detrimental to partial conversionsthe Claimant's reputation or future business prospects. In the event of any claims under Section 6 hereof for indemnification, a new note the Claimant shall advise the Indemnitor in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a holder of record of such shares of Common Stock as writing of the closing amount and circumstances surrounding said claim. Notwithstanding the foregoing, the Company shall promptly notify the Investor of business on any claim made against the Company alleging that any Shares were not issued in compliance with all applicable Conversion Datefederal or state securities laws.

Certain Procedures. The holder of this Note that is entitled to receive shares of Common Stock issuable upon conversion of this Note pursuant to Section 6(a), (b) or (cb), as applicable, shall be deemed to have converted this Note as of (i) in the event of a conversion pursuant to Section 6(a), the time of the closing and funding of the Qualified Equity Offering during the QEO Period, (ii) in the event of a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving of the holder’s notice of conversion pursuant to Section 6(c6(a) or (b) (as applicable, the “Conversion Date”). As of the Conversion Date, the Post-QEO Converted Amount, the Maturity Date Converted Voluntary Conversion Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by the holder and whether this Note is surrendered to Debtor at the QEO Conversion Price or the Issuance Date Conversion Price (as the same each may be adjusted pursuant to Section 7 hereof), as applicable; provided, however, that Debtor shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor from any loss incurred by it in connection therewith. Thereupon, there shall be issued and delivered to such holder, promptly at such office and in the name of such holder as shown hereon, a certificate or certificates for the number of shares of Common Stock into which the Note surrendered was convertible as of such Conversion Date, and with respect to partial conversions, a new note in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a holder of record of such shares of Common Stock as of the closing of business on the applicable Conversion Date.

Certain Procedures. In the event that either party to this Agreement (the "Claimant") desires to make a claim against the other (the "Indemnitor") under this Article VII, the Claimant shall give prompt written notice to the Indemnitor of any actions, suits, proceedings and demands at any time instituted against or made upon the Claimant and for which the Claimant claims a right to indemnification hereunder. The holder Claimant shall, at the time of giving such notice, if the Indemnitor shall agree that it would have responsibility to indemnify under this Note that Article VII, give the Indemnitor full authority to defend, adjust, compromise or settle the action, suit, proceeding or demand on which such notice is entitled based, in the name of the Claimant or otherwise as the Indemnitor shall elect unless, in the reasonable judgment of the Claimant, there is a conflict or potential conflict of interest between the Claimant and the Indemnitor in such action, suit or proceeding, in which event each of the Claimant and the Indemnitor (a) shall each have the right at its own expense and with counsel of its choosing to receive shares of Common Stock issuable upon conversion of this Note pursuant to Section 6(a)participate in the defense, adjustment, compromise or settlement thereof and (b) shall cooperate fully with the other in the defense, adjustment, compromise or (c)settlement thereof. Without limiting the generality of the provisions of Section 7.1 hereof, as applicable, shall be deemed to have converted this Note as of (i) in the event of a conversion pursuant to Section 6(a)any claims under Article VII hereof for indemnification, the time Claimant shall advise the Indemnitor in writing of the closing amount (if known) and funding of the Qualified Equity Offering during the QEO Period, (ii) in the event of a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving of the holder’s notice of conversion pursuant to Section 6(c) (as applicable, the “Conversion Date”). As of the Conversion Date, the Post-QEO Converted Amount, the Maturity Date Converted Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by the holder and whether this Note is surrendered to Debtor at the QEO Conversion Price or the Issuance Date Conversion Price (as the same may be adjusted pursuant to Section 7 hereof), as applicablecircumstances surrounding said claim; provided, however, that Debtor the failure by the Claimant to include an amount that is not known shall not prejudice the right to recover any amounts which the Claimant would otherwise be entitled to recover hereunder. With respect to liquidated claims, if within 30 calendar days the Indemnitor has not contested said claim in writing, the Indemnitor shall pay the full amount thereof in cash within 30 calendar days after the expiration of such period. With respect to any Loss for which Seller is obligated to issue certificates evidencing pay or reimburse Purchaser pursuant to this Section 7.2, Purchaser may, at its option, elect to offset against the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or Remaining Purchase Price Amount and accrued interest thereon in accordance with the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor from any loss incurred by it provisions specified in connection therewithSection 2.1 hereof. Thereupon, there shall be issued and delivered to such holder, promptly at such office and in the name of such holder as shown hereon, a certificate or certificates for the number of shares of Common Stock into which the Note surrendered was convertible as of such Conversion Date, and with respect to partial conversions, a new note in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a holder of record of such shares of Common Stock as of the closing of business on the applicable Conversion Date.HOU04:16668.1 -34-

Certain Procedures. In the event that a claim is made by a third party against any Investor Indemnitee or Company Indemnitee (the "Claimant") which, if successful, would entitle such Claimant to indemnification hereunder, or any Claimant desires to make a claim against any party to this Agreement (the "Indemnitor") under this Section 6, the Claimant shall give prompt notice to the Indemnitor of any actions, suits, proceedings and demands at any time instituted against or made upon Claimant and for which the Claimant claims a right to indemnification hereunder (including the amount and circumstances surrounding any claim); PROVIDED that the failure of a Claimant to give notice as provided in this Section 6.2 shall not relieve the Indemnitor of its obligations hereunder, except to the extent that the Indemnitor is actually prejudiced by such failure to give notice. The holder Indemnitor shall within 30 days after receipt of this Note that notice undertake to defend, adjust, compromise or settle the action, suit, proceeding or demand on which such notice is entitled based, in the name of the Claimant or otherwise as the Indemnitor shall elect. Notwithstanding the foregoing, the Claimant shall have the right to receive shares of Common Stock issuable upon conversion of this Note pursuant defend, adjust, compromise or settle any action, suit, proceeding or demand on its own behalf and to Section 6(a)be indemnified therefor if (a) the Indemnitor does not provide the undertaking referred to in the previous sentence, (b) the Indemnitor has not employed counsel reasonably satisfactory to the Claimant, or (c), as applicable, shall be deemed to have converted this Note as of (i) in the event of a conversion pursuant to Section 6(a), the time sole discretion of the closing Claimant, there is a conflict or potential conflict of interest between the Claimant and funding the Indemnitor or a legal defense available to it which differs from or is additional to those available to Indemnitor, in such action, suit or proceeding. The Indemnitor shall not, except with the consent of the Qualified Equity Offering during the QEO PeriodClaimant, (ii) in the event of enter into any settlement that does not include as a conversion pursuant to Section 6(b), June 30, 2010, and (iii) in the event of a conversion pursuant to Section 6(c), upon the giving term thereof an unconditional release of the holder’s notice of conversion pursuant to Section 6(c) (as applicable, the “Conversion Date”). As of the Conversion Date, the Post-QEO Converted Amount, the Maturity Date Converted Amount or the COC Conversion Amount, as applicable, shall be converted automatically without any further action by the holder and whether this Note is surrendered to Debtor at the QEO Conversion Price or the Issuance Date Conversion Price (as the same may be adjusted pursuant to Section 7 hereof), as applicable; provided, however, that Debtor shall not be obligated to issue certificates evidencing the shares of Common Stock issuable upon such conversion until this Note is either delivered to Debtor, as hereinafter provided, or the holder of this Note notifies Debtor, as hereinafter provided, that such Note have been lost, stolen or destroyed and executes an agreement reasonably satisfactory to Debtor to indemnify Debtor Claimant from any loss incurred by it in connection therewith. Thereupon, there shall be issued and delivered to such holder, promptly at such office and in the name of such holder as shown hereon, a certificate or certificates for the number of shares of Common Stock into which the Note surrendered was convertible as of such Conversion Date, and all liability with respect to partial conversions, a new note in the form of this Note for the remaining principal balance outstanding, together with accrued and unpaid interest, not so converted. Any person whose name the certificate for shares of Common Stock is to be issued shall be considered to have become a holder of record of such shares of Common Stock as of the closing of business on the applicable Conversion Dateclaim.