**Exhibit 10.1**

 

 

**ASSET PURCHASE AGREEMENT**

 

Between

 

**AMERICAN HERITAGE LIFE INSURANCE COMPANY,**as Seller

 

and

 

**ROAD BAY INVESTMENTS, LLC,**as Purchaser

 

Dated as of               

 

 

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**TABLE OF CONTENTS**

 
| ** **        | ** **                                           | **Page** |
|-------------------|------------------------------------------------------|----------|
|              |                                                 |     |
| ARTICLE I    | DEFINITIONS                                          | 1        |
|              |                                                 |     |
| Section 1.01 | Definitions                                          | 1        |
|              |                                                 |     |
| Section 1.02 | Other Definitional Provisions                        | 3        |
|              |                                                 |     |
| ARTICLE II   | PURCHASE AND SALE OF ASSETS                          | 3        |
|              |                                                 |     |
| Section 2.01 | Purchase and Sale of Assets                          | 3        |
|              |                                                 |     |
| Section 2.02 | Delivery and Payment                                 | 3        |
|              |                                                 |     |
| Section 2.03 | Forms of Notes                                       | 3        |
|              |                                                 |     |
| ARTICLE III  | TERMS AND CONDITIONS OF REPAYMENT OF NOTES; MATURITY | 3        |
|              |                                                 |     |
| Section 3.01 | Interest                                             | 3        |
|              |                                                 |     |
| Section 3.02 | Principal                                            | 3        |
|              |                                                 |     |
| Section 3.03 | Payments by the Purchaser                            | 3        |
|              |                                                 |     |
| Section 3.04 | Prepayment                                           | 4        |
|              |                                                 |     |
| ARTICLE IV   | REGISTRATION OF NOTES; TRANSFER AND EXCHANGE         | 4        |
|              |                                                 |     |
| Section 4.01 | Note Register                                        | 4        |
|              |                                                 |     |
| Section 4.02 | Exchanges and Transfers                              | 4        |
|              |                                                 |     |
| ARTICLE V    | RATIO OF DEBT TO TOTAL ASSETS COVENANT               | 5        |
|              |                                                 |     |
| ARTICLE VI   | EVENTS OF DEFAULT                                    | 5        |
|              |                                                 |     |
| Section 6.01 | Events of Default                                    | 5        |
|              |                                                 |     |
| Section 6.02 | Remedies Upon an Event of Default                    | 5        |
|              |                                                 |     |
| ARTICLE VII  | MISCELLANEOUS                                        | 5        |
|              |                                                 |     |
| Section 7.01 | Notices                                              | 5        |
|              |                                                 |     |
| Section 7.02 | Amendments, Waivers                                  | 6        |
|              |                                                 |     |
| Section 7.03 | Successors and Assigns; Third Party Beneficiaries    | 6        |
|              |                                                 |     |
| Section 7.04 | Severability                                         | 6        |
|                   |                                                      |          |  |

 

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| Section 7.05 | Binding Effect                         | 6      |
|-------------------|----------------------------------------|--------|
|              |                                   |   |
| Section 7.06 | GOVERNING LAW; CONSENT TO JURISDICTION | 6      |
|              |                                   |   |
| Section 7.07 | Execution in Counterparts              | 6      |
|              |                                   |   |
| Section 7.08 | Entire Agreement                       | 6      |
|              |                                   |   |
| Section 7.09 | Headings                               | 6      |

 

SCHEDULESAND EXHIBITS

 
| Schedule  I    | Initial  Assets     |
|----------------|---------------------|
| Schedule  II   | Notice  Information |
| Exhibit A | Form of  Note  |

 

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ThisASSET PURCHASE AGREEMENT, dated as of                ,is made by and between American Heritage Life Insurance Company, a lifeinsurance company domiciled in Florida (together with its successors andassigns, the “Seller”), and Road Bay Investments, LLC, a limitedliability company organized under the laws of the State of Delaware (togetherwith its successors and assigns, the “Purchaser”).

 

**RECITALS**

 

WHEREAS,the Seller desires to sell to the Purchaser on the date hereof and from time totime hereafter on or before December 31, 2010, and the Purchaser desiresto purchase from the Seller, commercial mortgage loans or participations incommercial mortgage loans with an aggregate fair value not in excess of25,000,000 (the “Assets”); and

 

WHEREAS,as consideration for the sale of the Assets, the Seller shall receive one ormore notes (the “ Notes”) from the Purchaser with an aggregate principalamount equal to the fair value of the Assets;

 

NOW,THEREFORE, for full and fair consideration, the parties hereto agree asfollows:

 

**ARTICLE IDEFINITIONS**

 

Section 1.01                     Definitions.  Thefollowing capitalized terms shall have the following meanings:

 

“Agreement”means this Asset Purchase Agreement, as the same may from time to time beamended, supplemented, or otherwise modified in accordance with the termshereof.

 

“Assets”has the meaning specified in the first WHEREAS clause in the recitals hereof.

 

“BusinessDay” means any day other than a Saturday or a Sunday or any day on whichbanking institutions in Chicago, Illinois, are authorized or obligated by law,regulation, or executive order to be closed.

 

“Debt” means, withoutduplication, the Purchaser’s liabilities for borrowed money; liabilities forthe deferred purchase price of property (excluding accounts payable arising inthe ordinary course of business but including, without limitation, allliabilities created or arising under any conditional sale or other titleretention agreement with respect to any such property); capital leaseobligations; all liabilities for borrowed money secured by any lien withrespect to any property owned by the Purchaser (whether or not it has assumedor otherwise become liable for such liabilities); and any guaranty by thePurchaser with respect to such liabilities or obligations of another person orentity.

 

“Event of Default”has the meaning specified in Section 6.01 hereof.

 

“FairValue” with respect to any Asset means the fair value of such Asset on thedate of purchase and sale under this Agreement determined in accordance withstatutory accounting principles as set forth in the National Association ofInsurance Commissioners’ Accounting Practices and Procedures Manual as then ineffect.

 

“Holder”means, with respect to any Note, the Person in whose name such Note isregistered in the Note Register.

 

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“InitialAssets” has the meaning specified in Section 2.01 hereof.

 

“InterestPayment Date” means each April 1 and October 1, commencing April 1,2010, provided that if such day is not a Business Day, the next succeedingBusiness Day.

 

“InterestPeriod” means, with respect to any Note, (a) in the case of theinitial interest period with respect to such Note, the period from, and including,the date such Note was issued to the Seller to, but excluding, the immediatelyfollowing Payment Date, (b) thereafter, the period from, and including,the preceding Payment Date to, but excluding, the next succeeding Payment Date,and (c) in the case of the final interest period with respect to suchNote, the period from, and including, the preceding Payment Date to, butexcluding, the Maturity Date.

 

“InterestRate” means, with respect to each Note, the rate set forth in suchnote.  The rate for each Note shall beequal to the sum of (a) the 7 Year CMT Rate on the issuance date of suchNote, plus (b) such spread, expressed in basis points, as shall beagreed between the Seller and Purchaser.

 

“MaturityDate” means, with respect to a Note, the date on which all outstandingunpaid principal on such Note becomes due and payable, whether at the StatedMaturity Date or by acceleration pursuant to Section 6.02.

 

“Note Register” has the meaning specified in Section 4.01 hereof.

 

“Notes” has the meaning specified in the second WHEREAS clause in therecitals hereof.

 

“PaymentDate” means any Interest Payment Date or Maturity Date.

 

“Person”means an individual, corporation (including a business trust), partnership,limited liability company, joint venture, association, joint stock company,trust (including any beneficiary thereof), unincorporated association orgovernment or any agency or political subdivision thereof.

 

“Purchaser”has the meaning specified in the introduction to this Agreement.

 

“Record Date” means the date on which the Holders ofany Note entitled to receive a payment with respect to principal or interest onthe next succeeding Payment Date are determined, such date as to any PaymentDate being five (5) Business Days prior to such Payment Date.

 

“Seller”has the meaning specified in the introduction to this Agreement.

 

“StatedMaturity Date” means, with respect to each Note, the seventh (7th) anniversary of theissuance date of such Note, provided such date is a Business Day.

 

“TotalAssets” means, at any time, the total assets of the Purchaser which wouldbe shown as assets on a balance sheet as of such time prepared in accordancewith generally accepted accounting principles as in effect from time to time inthe United States of America.

 

“7Year CMT Rate” for any date means the seven year Constant Maturity TreasuryYield as reported in the Wall Street Journal for the third Business Day priorto such date.

 

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Section 1.02                     Other Definitional Provisions.

 

(a)   Allterms defined in this Agreement shall have the defined meanings when used inany certificate or other document made or delivered pursuant hereto.

 

(b)  Thewords “hereof,” “herein,” and “hereunder” and words of similar import when usedin this Agreement shall refer to this Agreement as a whole and not to anyparticular provision of this Agreement; and Section and subsectionreferences contained in this Agreement are references to Sections orsubsections in or to this Agreement unless otherwise specified.

 

**ARTICLE IIPURCHASE AND SALE OF ASSETS**

 

Section 2.01                     Purchase and Sale of Assets.  Uponthe terms and subject to the conditions set forth in this Agreement, and inreliance on the covenants and agreements herein set forth, on the date hereof,the Seller shall sell and the Purchaser shall purchase the Assets listed onSchedule I (the “Initial Assets”).  Fromtime to time on or after the date hereof and on or before December 31,2010, the Seller may, on ten (10) Business Days’ notice to the Purchaser,offer to sell to the Purchaser, and the Purchaser may purchase, additionalAssets.  Notwithstanding the foregoingprovisions of this Section 2.01, the aggregate fair value of Assets thatmay be purchased and sold under this agreement shall not exceed$25,000,000.  As security for theperformance of the Purchaser’s obligations under this Agreement, the partieshereto shall, concurrent with this Agreement, enter into a Pledge and SecurityAgreement wherein Purchaser grants a pledge of and security interest in thePurchaser’s right, title, and interest in the Assets and the other collateralidentified therein.

 

Section 2.02                     Delivery and Payment.  TheSeller shall deliver the Initial Assets to the Purchaser on the datehereof.  Against delivery of the InitialAssets or any additional Assets, the Purchaser shall issue to Seller Notes withan aggregate principal amount equal to the aggregate Fair Value of suchAssets.  Purchaser shall issue a separateNote for the purchase of each Asset.

 

Section 2.03                     Forms of Notes.  The Notesshall be issued substantially in the form of the Note attached as Exhibit Ahereto and shall be duly executed and delivered by the Purchaser as hereinafterprovided.

 

**ARTICLE IIITERMS AND CONDITIONS OF REPAYMENT OF NOTES; MATURITY**

 

Section 3.01                     Interest.  Each Noteshall bear interest during each Interest Period at the Interest Rate set forthin such Note.  Interest shall be due andpayable on each Interest Payment Date.  Interest shall be computed on the basis of a 360-dayyear comprised of twelve 30-day months.

 

Section 3.02                     Principal.  Theprincipal of each Note shall be due and payable on the Stated Maturity Date.

 

Section 3.03                     Payments by the Purchaser.

 

(a)   Onany Payment Date, the Purchaser shall pay in accordance with the terms of thisAgreement: (i) all accrued but unpaid interest on the Notes and (ii) anyprincipal payments due with respect to the Notes, if any.

 

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(b)  Anyinterest or principal that has not been paid when due shall accrue interest ata rate per annum equal to the Interest Rate from and including, for each suchamount, the Payment Date therefor, up to but excluding the date on which eachsuch amount is actually paid.

 

(c)   Allpayments required to be made by the Purchaser with respect to this Article IIIshall be made:  (i) by wire transfer ofimmediately available funds and/or the transfer of marketable securities(valued at their fair market value) not later than 1:00 p.m., Chicagotime, and (ii) to the account of the Seller, or to such other account asthe Seller may have most recently designated in writing for such purpose bynotice to the Purchaser.

 

(d)  The Purchaser and any agent of the Purchaser may treat thePerson in whose name any Note is registered on the Note Register as the ownerof such Note on the applicable Record Date for the purpose of receivingpayments of principal and interest on such Note and on any other date for allother purposes whatsoever (regardless of whether such payment is overdue), andneither the Purchaser nor any agent of the Purchaser shall be affected bynotice to the contrary.

 

Section 3.04                     Prepayment.  ThePurchaser may prepay the Notes, in part or in full, at any time.  Upon Purchaser’s disposition of any Asset, orany real estate related to such Asset, Purchaser shall prepay, in full, theNote issued in connection with the purchase of such Asset.

 

**ARTICLE IVREGISTRATION OF NOTES; TRANSFER AND EXCHANGE**

 

Section 4.01                     Note Register.  ThePurchaser shall keep a register (the “Note Register”) at its office inNorthbrook, Illinois, in which it shall provide for the registration of theNotes and the registration of transfers of the Notes.   Such Note Register shall be in written formor in any other form capable of being converted into written form within areasonable time.  Upon surrender forregistration of transfer of any Note at the office of the Purchaser and incompliance with the restrictions set forth in any legend appearing on any Note,the Purchaser shall execute and deliver, in the name of the designatedtransferee or transferees, one or more new Notes of any authorized denominationand of like terms.

 

Section 4.02                     Exchanges and Transfers.  Atthe option of any Holder, any Note may be exchanged for one or more Notes, of anyauthorized denomination and of like terms, upon surrender of the Note to beexchanged at the office of the Purchaser or such other office as the Purchasermay designate for such purposes. Whenever any Note is surrendered for exchange, the Purchaser shallexecute and deliver the Note that the Holder making the exchange is entitled toreceive.  Any Notes issued upon anyregistration of transfer or exchange of a Note shall be the valid obligationsof the Purchaser, evidencing the same debt, and entitled to the same benefitsunder this Agreement, as the Note surrendered upon such registration oftransfer or exchange.  Every Notepresented or surrendered for registration of transfer or exchange shall be dulyendorsed, or be accompanied by a written instrument of transfer in formsatisfactory to the Purchaser duly executed by the Holder thereof or itsattorney duly authorized in writing.  Noservice charge shall be made to a purchaser for any registration of transfer orexchange of a Note, but the Purchaser may require payment of a sum sufficientto cover the expenses of delivery (if any) not made by regular mail or any taxor other governmental charge payable in connection therewith.

 

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**ARTICLE V**

**RATIO OF DEBT TO TOTAL ASSETS COVENANT**

 

Until this Agreement isterminated and all obligations of the Purchaser under this Agreement and theNotes have been paid or performed in full, the Purchaser covenants and agreesthat it will not directly or indirectly, create, incur, assume, guarantee, orotherwise become directly or indirectly liable with respect to any Debt, unless on the date the Purchaserbecomes liable with respect to any such Debt and immediately after givingeffect thereto and the concurrent retirement of any other Debt, no Event ofDefault exists and the aggregate amount of its Debt does not exceed 50% of itsTotal Assets for its then most recently ended fiscal year.

 

**ARTICLE VIEVENTS OF DEFAULT**

 

Section 6.01                     Events of Default.  Theoccurrence of any of the following events shall constitute an “Event ofDefault” hereunder:

 

(a)   defaultis made in the payment of any installment of interest on the Notes when suchinterest becomes due and payable and such default continues for a period of 30days,

 

(b)  defaultis made in the payment of the principal of the Notes when such principalbecomes due and payable, or

 

(c)          default is made in the performance of the covenant set forth in Article Vof this Agreement or any other part of this Agreement as it may be amended fromtime to time.

 

Section 6.02                     Remedies Upon an Event of Default.  Uponthe occurrence of an Event of Default, the Seller may give notice of such Eventof Default to the Purchaser and demand payment of the entire outstanding principalamount of such Notes, plus all accrued but unpaid interest, plusinterest on such overdue principal and overdue interest at the Interest Rate, plussuch further amounts as shall be necessary to cover the Seller’s costs andexpenses of collection, including reasonable attorneys’ fees.

 

**ARTICLE VIIMISCELLANEOUS**

 

Section 7.01                     Notices.  Except inthe case of notices and other communications expressly permitted to be given bytelephone, all notices and other communications provided for herein shall bedelivered by the following means:  (i) handdelivery, (ii) overnight courier service (e.g., FedEx, or AirborneExpress); (iii) registered or certified U.S. mail, postage prepaid, andreturn receipt requested; or (iv) facsimile transmission.  If any notice or other communication providedfor herein is sent by any party by electronic e-mail it shall not be deemed tohave been delivered to the addressee if the party sending such notice orcommunication receives a response from the intended addressee that he or shewill not be able to retrieve e-mail due to vacation, other absence from theoffice, system failure, or other reason. All such notices shall be delivered to the parties as set forth on ScheduleII hereof.  All notices and othercommunications given to any party hereto in accordance with the provisions ofthis Agreement shall be deemed to have been given on the date of receipt.

 

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Section 7.02                     Amendments, Waivers.

 

(a)   Exceptas otherwise expressly provided herein, no amendment or waiver of any provisionof this Agreement shall in any event be effective unless the same shall be inwriting and signed by the parties hereto.

 

(b)  TheSeller and the Purchaser may amend any provision of this Agreement to effectuatethe division of any Notes held by the Seller into paid and unpaid portions andthe surrender of the paid portion.

 

(c)   Eachsuch amendment, waiver, or consent shall be effective only in the specificinstance and for the specific purpose for which given.  A failure or delay in exercising any right,power, or privilege with respect to this Agreement will not be presumed tooperate as a waiver, and a single or partial exercise of any right, power, orprivilege will not be presumed to preclude any subsequent or further exerciseof that right, power, or privilege or the exercise of any other right, power,or privilege.

 

Section 7.03                     Successors and Assigns; Third PartyBeneficiaries.  The provisions of this Agreement shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors.  This Agreementshall not be transferred or assigned under any circumstances.  Nothing in this Agreement, expressed orimplied, shall be construed to confer upon any Person (other than the partieshereto and their respective successors and permitted transferees) any legal orequitable right, remedy, or claim under or by reason of this Agreement.

 

Section 7.04                     Severability.  Anyprovision of this Agreement held to be invalid, illegal, or unenforceable inany jurisdiction shall, as to such jurisdiction, be ineffective to the extentof such invalidity, illegality, or unenforceability without affecting thevalidity, legality, and enforceability of the remaining provisions hereof; andthe invalidity of a particular provision in a particular jurisdiction shall notinvalidate such provision in any other jurisdiction.

 

Section 7.05                     Binding Effect.  ThisAgreement shall remain in full force and effect until such time as all of theNotes issued by the Purchaser shall have been repaid in full and cancelled.

 

Section 7.06                     GOVERNING LAW; CONSENT TO JURISDICTION.  THISAGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF ILLINOIS.

 

Section 7.07                     Execution in Counterparts.  ThisAgreement may be executed in any number of counterparts and by differentparties hereto in separate counterparts, each of which when so executed shallbe deemed to be an original and all of which when taken together shallconstitute one and the same agreement. Delivery of an executed counterpart of a signature page of thisAgreement by telecopy shall be effective as delivery of a manually executedcounterpart of this Agreement.

 

Section 7.08                     Entire Agreement.  ThisAgreement constitutes the entire agreement between the parties relating to thesubject matter hereof and supersedes any and all previous agreements andunderstandings, oral or written, relating to the subject matter hereof.

 

Section 7.09                     Headings.  Article andSection headings used herein are for convenience of reference only, arenot part of this Agreement, and shall not affect the construction of, or betaken into consideration in interpreting, this Agreement.

 

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*[SIGNATURE PAGE FOLLOWS]*

 

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INWITNESS WHEREOF, the parties have caused this Agreement to be executed by theirrespective officers thereunto duly authorized, as of the first date writtenabove.

 

 
|   | AMERICAN  HERITAGE LIFE INSURANCE COMPANY |
|--------|-------------------------------------------|
|   | as  Seller                                |
|   |                                      |
|   | By:                                       |   |
|   | Name:                                     |   |
|   | Title:                                    | Authorized  Signatory |
|   |                                      |
|   | By:                                       |   |
|   | Name:                                     |   |
|   | Title:                                    | Authorized  Signatory |
|   |                                      |
|   |                                      |
|   | ROAD  BAY INVESTMENTS, LLC                |
|   | as  Purchaser                             |
|   |                                      |
|   | By:                                       |   |
|   | Name:                                     |   |
|   | Title:                                    | Authorized  Signatory |
|   |                                      |
|   | By:                                       |   |
|   | Name:                                     |   |
|   | Title:                                    | Authorized  Signatory |

 

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** **

**SCHEDULE I**

**toAsset Purchase Agreement between American heritage life Insurance Company**

**and Road Bay Investments, LLC**

 

1.                                       That certainMortgage Note dated October 1, 2004, executed by DEERFIELD PROPERTY TRUST,a Maryland real estate investment trust and PROLOGIS DEERFIELD FUND LP, aDelaware limited partnership to the order of AMERICAN HERITAGE LIFE INSURANCE COMPANY, in the original principal amountof $2,900,000 and that certain Mortgage Note dated October 1, 2004,executed by DEERFIELD PROPERTY TRUST, a Maryland real estate investment trustand PROLOGIS SIX RIVERS LIMITED PARTNERSHIP, a Delaware series limitedpartnership to the order of  AMERICANHERITAGE LIFE INSURANCE COMPANY, in the original principal amount of$4,125,000, including all of Seller’s right, title and interest under any andall documents and instruments securing, executed in connection with, or relatedin any manner whatsoever to, such notes. The forgoing notes were issued in connection with across-collateralized, cross-defaulted commercial mortgage loan with anaggregate original principal amount of $123,000,000 made by Seller and certainof its affiliates to Deerfield Property Trust and certain of its affiliates.

 

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**SCHEDULE IItoAsset Purchase Agreement between American Heritage Life Insurance Company**

**and Road Bay Investments, LLC**

 

**NOTICE INFORMATION**

 

**Addressfor Notices to Seller:**

 

AmericanHeritage Life Insurance Company

3075Sanders Road

Northbrook, Illinois60062 Attention: Commercial Mortgage Division

 

**Addressfor Notices to Purchaser:**

 

RoadBay Investments, LLC

3075Sanders Road, Suite G5C

Northbrook, IL60062

Attention:  President

 

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**EXHIBIT A**

 

**FORM OF NOTE**

 

[ISSUE DATE]

 

 

RoadBay Investments, LLC, a limited liability company duly organized and existingunder the laws of the State of Delaware (the “Company”), for value receivedhereby promises to pay to[                                              ],or its assigns, the outstanding balance of the principal sum of [                                           ]in cash on [STATED MATURITY DATE] and to pay interest thereon semi-annually onthe first day of April and October in each year, commencing [FIRSTINTEREST DATE], at [RATE], until the principal hereof is paid in full, exceptthat the final payment of any accrued and unpaid interest shall be concurrentwith the final****payment of principal.  Interest will be computed on the basis of a360-day year of twelve 30-day months. All principal and interest shall be paid at the principal corporateoffice of the Company or such other place, which shall be acceptable to theCompany, as the holder hereof shall designate in writing to the Company, incollected and immediately available funds in lawful money of the United Statesof America.  Principal and interest shallbe payable on the terms and conditions set forth below

 

1.                                       The Companycovenants that if:

 

(a)                                  default is madein the payment of any installment of interest on this Note when such interestbecomes due and payable and such default continues for a period of 30 days,

 

(b)                                 default is madein the payment of the principal of this Note when such principal becomes dueand payable, or

 

(c)                                  default is madein the performance of the covenant set forth in Article V, or any otherpart, of that certain Asset Purchase Agreement dated as of            ,20     between the Company and                        ,as it may be amended from time to time,

 

theCompany will, upon demand by the holder of this Note, pay to it the entireoutstanding principal amount of this Note, plus all accrued but unpaidinterest, plus interest on such overdue principal and overdue interestat the interest rate borne by this Note; and, in addition thereof, such furtheramount as shall be sufficient to cover the costs and expenses of collection,including reasonable attorneys’ fees.

 

2.                                       Each paymentmade hereunder will be credited first to accrued but unpaid interest, if any,and the balance of such payment will be credited to the principal amounthereof.

 

3.                                       In the eventthat any payment of principal or interest on this Note is scheduled to be madeon a day that is not a Business Day, then such payment shall be made on thenext following Business Day and no additional interest shall accrue as a resultof payment on such following Business Day. For the purpose of this paragraph, “Business Day” shall mean any daythat is not a Saturday, Sunday, or any other day on which banking institutionsin the State of Illinois are permitted or required by any applicable law toclose.

 

4.                                       The Company’sobligations under this Note are secured pursuant to that certain Pledge andSecurity Agreement dated as of              ,20     between the Company and                                                   ,as it may be amended from time to time.

 

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5.                                       The Company mayprepay this Note, in part or in full, at any time.  The Company shall prepay this Note upondisposition of the asset, or any real estate related to such asset, purchasedby the Company with this Note.

 

6.                                       In the eventthe Company consolidates or merges into another entity or transferssubstantially all of its assets to another entity, the entity into which theCompany consolidates or merges or to which the assets of the Company aretransferred must assume the liability of the Company hereunder.

 

7.                                       This Note shallbe construed in accordance with, and governed by, the laws of the State ofIllinois.

 

INWITNESS WHEREOF, the Company has caused this Note to be executed in its nameand attested to by its authorized officer, all as of the date first writtenabove.

 
|    | ROAD  BAY INVESTMENTS, LLC   |
|---------|------------------------------|
|    |                         |
|    | By:                          |   |
|    |                         | Name: |
|    |                         | Title: |
|    |                         |
|    | By:                          |   |
|    | Name:                        |
|    | Title:  Authorized Signatory |
|    |                         |
|    |                         |
| Attest: |                         |

 

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