Common use of Subsequent Closings Clause in Contracts

Subsequent Closings. The Company may sell up to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold at the Initial Closing to such purchasers as it shall select at one or more subsequent closings (each, a "Subsequent Closing," and the date ------------------ of each such Subsequent Closing, a "Subsequent Closing Date"), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of the purchase price for the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Date." ------------

Subsequent Closings. (a) The Company may sell up to an ------------------- additional 755,000 shares will have a two-year fundraising period that will expire on the second anniversary of the Series A Preferred Stock not sold at the Initial Closing (as defined in the Memorandum); provided, however, that this fundraising period is permitted to such purchasers as it shall select be extended for two additional one-year periods by the Company's board of directors by majority vote and, thereafter, one additional one-year period by the Company's stockholders by majority vote (the "Fundraising Period"). Through the end of the Fundraising Period, the Company may, at the Adviser's sole discretion, hold one or more subsequent closings on such dates as the Adviser determines (each, each date on which a "Subsequent Closing," and the date ------------------ of each such Subsequent Closingsubsequent closing is held, a "Subsequent Closing Date"), at . Upon or following the acceptance of a ----------------------- price of not less than $1.00 per share and Subscriber's Capital Commitment on terms no more favorable than those contained herein. Notwithstanding the foregoing, no any Subsequent Closing may occur after the date which is 30 days Date, such Subscriber shall be required to purchase from the date Company, on one or more occasions (all of this Amendment. Upon which shall be on or prior to the next Drawdown Date), each pursuant to a Catch-up Notice (as defined below), an aggregate number of Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this AgreementSubscriber, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement such Subscriber's Net Contributed Capital Percentage (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party be equal to the Series A Agreements Net Contributed Capital Percentage of each prior Subscriber (other than Defaulting Subscribers (as defined below)) that has previously funded a Drawdown Purchase (each such purchase, a "Catch-up Purchase"). Notice of a Catch-up Purchase (a "Catch-up Notice") will be delivered to a Subscriber at least ten (10) days prior to the applicable Catch-up Date and shall set forth (i) the amount, in U.S. Dollars, of the Catch-up Purchase for such Subscriber, (ii) the date on which payment for the applicable Subsequent Closing Catch-up Purchase is due (the "Catch-up Date, ") and shall be deemed a "Purchaser" or an "Investor" (iii) wire instructions for purposes funding of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser in Catch-up Purchase. Any Subscriber increasing its Capital Commitment on any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively shall be treated as if it were making a new Capital Commitment in the "Closing DateCompany." ------------

Subsequent Closings. The Company may sell up hold one or more closings subsequent to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold at the Initial Closing (each date on which a subsequent closing is held, a “Subsequent Closing Date”) to such purchasers as it shall select at admit one or more subsequent closings additional Members or to allow any existing Member to increase its Commitment (eacheach such Member, a "“Subsequent Closing," and Closing Member”). Upon or following the date ------------------ acceptance of each such a Subsequent Closing, a "Closing Member’s Commitment on any Subsequent Closing Date", such Subsequent Closing Member may be required to make a Catch-up Purchase, on no less than seven Business Days (measured from the date the Company sends the applicable notice, rather than the date such notice is received), at a ----------------------- price of not less than $1.00 per share the Adjusted Purchase Price. Such Units may be required to be purchased on any date on or following the applicable Subsequent Closing Date and on terms no more favorable than those contained hereinor prior to the next Catch-up Date. Notwithstanding the foregoing, no Catch-up Dates can occur at any point in a month but generally will not occur in a month for which there is also a Drawdown Date. Any Member increasing its Capital Commitment on any Subsequent Closing may occur after Date shall be treated as if it were making a new Commitment to the date which is 30 days from the date of this AmendmentCompany. Upon payment of the purchase price for the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this AgreementAdjusted Purchase Price on each Catch-up Date, the Investors' Rights Agreementnumber of Units (including fractional Units) issuable to a Subsequent Closing Member will equal: (x) the Adjusted Purchase Price for such Subsequent Closing Member, minus the CoOrganizational Expense allocation, divided by (y) the then-Sale Agreement current NAV per Unit. A Catch-up Date and a Drawdown Date generally will not occur in the Voting Agreement (collectively, the "Series A Agreements" and same calendar month. In connection with each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- Drawdown Date following any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreementsall Members, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable including Subsequent Closing Date; (c) no further deliveries pursuant Members, shall purchase Units in accordance with 6.1, subject in all cases to Section 4 the Company’s right to limit issuances of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser Units in any such Subsequent Closing shall not be entitled order to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Datecomply with applicable law, including ERISA." ------------

Subsequent Closings. The In the event that, prior to the second anniversary of Closing, the Company may sell up sells shares of its Preferred Stock to an ------------------- additional 755,000 shares of investor (a "Subsequent Purchaser"), the Series A Preferred Stock not sold Company shall at the Initial Closing to time of each such purchasers as it shall select at one or more subsequent closings sale (each, a "Subsequent Closing," ") also sell and the date ------------------ Purchaser shall purchase shares of each Preferred Stock of the Company for an aggregate purchase price equal to one-half of the amount paid by the Subsequent Purchaser; provided, that the maximum amount the Purchaser shall be obligated to invest to purchase Preferred Stock pursuant to this Section 2.2 shall be $5,000,000. The price per share to be paid by the Purchaser for Preferred Stock at a Subsequent Closing shall be $5.00 per share, unless the price being paid by the Subsequent Purchaser at such Subsequent Closing, a "Subsequent Closing Date"), at a ----------------------- price of not is less than $1.00 2.00 per share, in which event the price to be paid by the Purchaser at such Subsequent Closing shall equal $5.00 per share multiplied by a fraction the numerator of which is the price per share being paid by the Subsequent Purchaser at such Subsequent Closing and the denominator of which is $2.00. Any Preferred Stock issued to the Purchaser or a Subsequent Purchaser at a Subsequent Closing shall be issued to the Purchaser pursuant to a purchase agreement substantially identical to this Agreement (or on such other terms as the Purchaser may agree in its sole discretion) and to the Subsequent Purchaser on terms no more favorable to the Subsequent Purchaser than those contained hereinthe terms of this Agreement and the Shareholders Agreement of even date herewith between the Company, the Purchaser and the Existing Shareholders named therein (the "Shareholders Agreement"). The Preferred Stock issued to the Purchaser at a Subsequent Closing shall be (a) Series B Preferred if the price per share to be paid by the Purchaser at such Subsequent Closing is $5.00, (b) if the price per share to be paid by the Purchaser at such Subsequent Closing is less than $5.00, a new series of Preferred Stock containing terms substantially identical to the Series B Preferred, except that the original issue price and initial conversion value reflected in the terms of such new series of Preferred Stock shall be the lower purchase price, or (c) Preferred Stock containing such other terms as the Purchaser may agree in its sole discretion. The Preferred Stock issued to the Subsequent Purchaser at a Subsequent Closing shall be (x) a new series of Preferred Stock (other than a series issued to the Purchaser) containing terms substantially identical to the Series B Preferred, except that the original issue price and initial conversion value reflected in the terms of such new series of Preferred Stock shall be the purchase price paid by such Subsequent Purchaser, or (y) Preferred Stock containing such other terms as the Purchaser may agree in its sole discretion. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date foregoing provisions of this Amendment. Upon payment of Section 2, so long as the purchase price Purchaser holds at least 500,000 shares (as adjusted for the shares stock splits, stock dividends, recapitalizations or similar events) of Series A B Preferred Stock being purchased and execution of a signature page counterpart Stock, (i) in no event shall the Company sell any equity securities to this Agreement, any investor (other than the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined belowPurchaser) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (aA) the representations manages, operates or owns any public or private school having any grade level from pre-K through and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations including grade 12 and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as of offering a Subsequent Closing Date; curriculum that includes mathematics, science and humanities and (dB) a purchaser in any has annual revenues of more than $5,000,000 from such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing activity and each Subsequent Closing are referred to herein collectively as (ii) without the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Date." ------------prior written

Subsequent Closings. The Company may sell up enter into Other Subscription Agreements with Other Subscribers after the Closing Date, with any closing thereunder referred to an ------------------- additional 755,000 shares as a “Subsequent Closing” and any Other Subscriber whose subscription has been accepted at such Subsequent Closing referred to as a “Subsequent Subscriber.” Notwithstanding the provisions of the Series A Preferred Stock not sold at the Initial Closing to such purchasers as it shall select at Sections 4.1 and 4.3, on one or more subsequent closings dates to be determined by the Company that occurs on or following the Subsequent Closing but no later than the next succeeding Drawdown Date (each, a "“Catch-Up Date”), each Subsequent Closing," and Subscriber shall be required to purchase from the date ------------------ Company a number of each Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the Subsequent Subscriber in the aggregate over all applicable Catch-Up Dates, such Subsequent Closing, a "Subsequent Closing Date"Subscriber’s Invested Percentage shall be equal to the Invested Percentage of all prior Subscribers (other than any Defaulting Subscribers or Excluded Subscribers) (the “Catch-Up Purchase Price”), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding For the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date purposes of this AmendmentSection 4.2, “Invested Percentage” means, with respect to a Subscriber, the quotient determined by dividing (i) the aggregate amount of contributions made by such Subscriber pursuant to Section 4.1 and this Section 4.2 by (ii) such Subscriber’s Capital Commitment. Upon payment of all or a portion of the purchase price for Catch-Up Purchase Price by the shares of Series A Preferred Stock being purchased and execution of Subscriber on a signature page counterpart to this AgreementCatch-Up Date, the Investors' Rights Agreement, Company shall issue to each such Subsequent Subscriber a number of Shares determined by dividing (i) the Coportion of the Catch-Sale Agreement and Up Purchase Price contributed at such Catch-Up Date by (ii) the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements Price Per Share as of the applicable Subsequent Closing Catch-Up Date. For the avoidance of doubt, in the event that a Catch-Up Date and a Capital Drawdown Date occur on the same calendar day, the Catch-Up Date (and the application of the provisions of this Section 4.2) shall be deemed a "Purchaser" or an "Investor" for purposes to have occurred immediately prior to the relevant Capital Drawdown Date. At each Capital Drawdown Date following any Subsequent Closing, all Subscribers, including Subsequent Subscribers, shall purchase Shares in accordance with the provisions of Section 4.1; provided, however, that notwithstanding the Series A Agreementsforegoing, as the case may bedefinition of Drawdown Share Amount and the provisions of Section 4.3, provided that (a) the representations and warranties of nothing in this Subscription Agreement shall prohibit the Company shall be deemed made as of from issuing Shares to Subsequent Subscribers at a per share price greater than the Initial Closing Date; (b) net asset value per Share. In the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made event that any Subscriber is permitted by the Company as of a Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to make an additional capital commitment to purchase any Warrants. The Initial Closing Shares on a date after its initial subscription has been accepted, such Subscriber will be required to enter into a separate subscription agreement with the Company, it being understood and each Subsequent Closing are referred agreed that such separate subscription agreement will be considered to herein collectively as be an Other Subscription Agreement for the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Datepurposes of this Subscription Agreement." ------------

Subsequent Closings. The Company may sell up hold one or more closings subsequent to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold at the Initial Closing (each date on which a subsequent closing is held, a “Subsequent Closing Date”) to such purchasers as it shall select at admit one or more subsequent closings additional Members or to allow any existing Member to increase its Commitment (eacheach such Member, a "“Subsequent Closing," and Closing Member”). Upon or following the date ------------------ acceptance of each such a Subsequent Closing, a "Closing Member’s Commitment on any Subsequent Closing Date", such Subsequent Closing Member may be required to make a Catch-up Purchase, on no less than seven Business Days (measured from the date the Company sends the applicable notice, rather than the date such notice is received), at a ----------------------- price of not less than $1.00 per share the Adjusted Purchase Price. Such Units may be required to be purchased on any date on or following the applicable Subsequent Closing Date and on terms no more favorable than those contained hereinor prior to the next Catch-up Date. Notwithstanding the foregoing, no Catch-up Dates can occur at any point in a month but generally will not occur in a month for which there is also a Drawdown Date. Any Member increasing its Capital Commitment on any Subsequent Closing may occur after Date shall be treated as if it were making a new Commitment to the date which is 30 days from the date of this AmendmentCompany. Upon payment of the purchase price for the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this AgreementAdjusted Purchase Price on each Catch-up Date, the Investors' Rights Agreementnumber of Units issuable to a Subsequent Closing Member will equal: (x) the Adjusted Purchase Price for such Subsequent Closing Member, minus the CoOrganizational Expense allocation, divided by (y) the then-Sale Agreement current NAV per Unit. A Catch-up Date and a Drawdown Date generally will not occur in the Voting Agreement (collectively, the "Series A Agreements" and same calendar month. In connection with each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- Drawdown Date following any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreementsall Members, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable including Subsequent Closing Date; (c) no further deliveries pursuant Members, shall purchase Units in accordance with 6.1, subject in all cases to Section 4 the Company’s right to limit issuances of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser Units in any such Subsequent Closing shall not be entitled order to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Datecomply with applicable law, including ERISA." ------------

Subsequent Closings. The Company may sell up expects to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold at hold closings subsequent to the Initial Closing Date (each date on which a subsequent closing is held, a “Subsequent Closing Date”) and issue additional Shares (including Shares of any New Class (as defined below)) to any Member (including any Additional Member (as defined below)) on terms and conditions as determined by the Board (as defined below); provided, however, that no Member shall be required to purchase such purchasers additional Shares. Members will be required to fund drawdowns to purchase additional Shares of the Company up to the amount of their respective Capital Commitments each time the Company delivers a drawdown notice, which will be at least ten (10) Business Days prior to funding (“Drawdown Notice”). The Company intends to solicit subscriptions for additional Capital Commitments for a period of five years from October 31, 2023 (the date that the Company first issued a Drawdown Notice, the “Initial Investment Period”), after which the Company expects to conduct a Liquidity Event, as defined below. Investment Period may be extended by the Board as it shall select at may deem appropriate. If the Company enters into a Subscription Agreement with one or more subsequent closings investors after the initial capital drawdown from investors (the “Initial Drawdown” and the date on which the Initial Drawdown occurs, the “Initial Drawdown Date”), each such investor may, at the discretion of the Board, be required to make purchases of Shares (each, a "Subsequent Closing," and “Catch-Up Purchase”) on one or more dates to be determined by the date ------------------ Company. The aggregate purchase price of each the Catch-Up Purchases will be equal to an amount necessary to ensure that, upon payment of the aggregate purchase price, such Subsequent Closing, investor will have contributed the same percentage of its Capital Commitment to the Company as all Members whose subscriptions were accepted at previous closings. Catch-Up Purchases will be made at a "Subsequent Closing Date"per-share price as determined by our Board (including any committee thereof), at which price will be determined prior to the issuance of such Shares and in accordance with the limitations under Section 23 of the Investment Company Act. In order to more fairly allocate organizational and other expenses among all of our Members, investors subscribing after the Initial Drawdown may be required to pay a ----------------------- price of not less than $1.00 per share above net asset value reflecting a variety of factors, including, without limitation, the total amount of our organizational and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from other expenses amortized and/or incurred between the date of this Amendmentthe Initial Drawdown and the relevant subsequent capital drawdown. Upon payment of In addition to all legal remedies available to the Company, failure by a Member to purchase price for the shares of Series A Preferred Stock being purchased and execution additional Shares when capital is called in respect of a signature page counterpart Member’s Capital Commitment will (following a cure period of seven (7) Business Days) result in that Member being subject to certain default provisions set forth in Section 7.2(e) of this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except . Defaulting Members may also forfeit their right to add such purchaser's name to Exhibit A to such agreements, --------- participate in purchasing additional Shares on any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" future drawdown date or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser otherwise participate in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Datefuture investments in Shares." ------------

Subsequent Closings. The Company may sell up enter into Other Subscription Agreements with Other Investors after the Closing, with any closing thereunder referred to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold as a “Subsequent Closing” and any Other Investor whose subscription has been accepted at the Initial such Subsequent Closing referred to such purchasers as it shall select at a “Subsequent Investor.” On one or more subsequent closings dates to be determined by the Company that occur on or following the Subsequent Closing (eacheach such date, a "“Catch-Up Date”), each Subsequent Closing," and Investor shall be required to purchase from the date ------------------ Company a number of each Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the Subsequent Investor on such Catch-Up Date(s), such Subsequent ClosingInvestor’s Invested Percentage (as defined below) shall be equal to the Invested Percentage of all prior Investors (other than any Defaulting Investor) (such amount, a "Subsequent Closing Date"the “Catch-Up Purchase Price” and such purchase, the “Catch-up Purchase”), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of all or a portion of the purchase price for Catch-Up Purchase Price by the shares of Series A Preferred Stock being purchased and execution of Investor on a signature page counterpart to this AgreementCatch-Up Date, the Investors' Rights Agreement, Company shall issue to each such Subsequent Investor a number of Shares determined by dividing (x) the CoCatch-Sale Agreement and Up Purchase Price paid minus the Voting Agreement Organizational Expense Allocation (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A by (y) the NAV per Share as of a Catch-Up Date (determined prior to such agreementsissuance). Investors that make a Capital Commitment prior to any Subsequent Closing will not be required to fund Drawdown Purchases on a Drawdown Date until all Subsequent Investors have made their entire Catch-up Purchase. For the avoidance of doubt, --------- any in the event that the Catch-Up Date and a Drawdown Date occur on the same calendar day, such purchaser shall become a party to Catch-Up Date and the Series A Agreements as application of the applicable Subsequent Closing Date, and provisions of this Section 3(f) shall be deemed a "Purchaser" or to have occurred immediately prior to the relevant Drawdown Date. “Invested Percentage” means, with respect to an "Investor" for purposes , the quotient determined by dividing (i) the aggregate amount of the Series A Agreementscontributions made by such Investor by (ii) such Investor’s Capital Commitment. “Organizational Expense Allocation” means, as the case may bewith respect to an Investor, provided that (a) multiplied by (b), where: (a) equals (i) a fraction, the representations and warranties numerator of which is the total Capital Commitments received by the Company shall be deemed made as through such date (including the Investor’s), and the denominator of which is the Initial Closing Datetotal Capital Commitments received by the Company through such date (excluding the Investor’s), minus (ii) 1.00; and (b) equals the representations total amount of organizational and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made offering expenses spent by the Company as of a Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as connection with the "Closing" Company’s formation and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as offering described in the "Closing DateMemorandum." ------------

Subsequent Closings. The Company Fund may sell up enter into Other Subscription Agreements with Other Investors after the Closing, with any closing thereunder referred to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold as a “Subsequent Closing” and any Other Investor whose subscription has been accepted at the Initial such Subsequent Closing referred to such purchasers as it shall select at a “Subsequent Investor.” On one or more subsequent closings dates to be determined by the Fund that occur on or following the Subsequent Closing (eacheach such date, a "“Catch-Up Date”), each Subsequent Closing," and Investor which enters into a Capital Commitment with the date ------------------ Fund may be required, in the Fund’s sole discretion, to purchase from the Fund a number of each Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the Subsequent Investor on such Catch-Up Date(s), such Subsequent ClosingInvestor’s Invested Percentage (as defined below) shall be equal to the Invested Percentage of all prior Investors which have entered into Capital Commitments with the Fund (other than any Defaulting Investor (as defined below)) (such amount, a "Subsequent Closing Date"the “Catch-Up Purchase Price” and such purchase, the “Catch-Up Purchase”), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of all or a portion of the purchase price for the shares of Series A Preferred Stock being purchased and execution of Catch-Up Purchase Price by such an Investor on a signature page counterpart to this AgreementCatch-Up Date, the Investors' Rights AgreementFund shall issue to each such Subsequent Investor a number of Shares equal to the portion of the Catch-Up Purchase Price paid divided by the then-current transaction price per Share as of such Catch-Up Date, determined in accordance with the Coprovisions of Section 3(c). Investors that make a Capital Commitment prior to any Subsequent Closing will not be required to fund Drawdown Purchases on a Drawdown Date until all Subsequent Investors have made their entire Catch-Sale Agreement Up Purchase. For the avoidance of doubt, in the event that the Catch-Up Date and a Drawdown Date occur on the same calendar day, such Catch-Up Date and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as application of the applicable Subsequent Closing Date, and provisions of this Section 3(e) shall be deemed a "Purchaser" or to have occurred immediately prior to the relevant Drawdown Date. “Invested Percentage” means, with respect to an "Investor" for purposes of , the Series A Agreements, as the case may be, provided that quotient determined by dividing (ai) the representations and warranties aggregate amount of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be contributions made by the Company as of a Subsequent Closing Date; and such Investor by (dii) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing DateInvestor’s Capital Commitment." ------------

Subsequent Closings. The Company may sell up to an ------------------- additional 755,000 shares purchase and sale of the Series A Preferred Stock 637,731 Shares for which the Services Consideration is to be paid (as such amount may be appropriately adjusted to reflect any stock split, reverse split, stock dividend or other reclassification or recapitalization affecting the capital stock of the company, the record date of which shall occur after the date of this Agreement) (the "Remaining Shares") shall take place in installments from time to time, but not sold more frequently than once in each fiscal quarter, following the execution and delivery of the Services Agreement, at such places and dates as the parties shall mutually agree; provided, however, that in the event the parties do not agree upon the date for such purchases and sales, such purchases and sales shall take place on the fifteenth (15th) business day following the end of each fiscal quarter of the Company. Each such purchase and sale following the Initial Closing is hereinafter referred to such purchasers as it shall select at one or more subsequent closings (each, a "Subsequent Closing," and the date ------------------ of each upon which such Subsequent Closing, Closing occurs (or is scheduled to occur) is hereinafter referred to as a "Subsequent Closing Date")." At each Subsequent Closing, at the Company will deliver to TDC a ----------------------- price certificate registered in the name of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding TDC (or such other wholly-owned subsidiary of TCI as TCI may direct) evidencing that number of Shares that is equal to the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment value of the purchase price for the shares of Series A Preferred Stock being purchased services theretofore rendered by TCI and execution of a signature page counterpart to this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement its affiliates (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made and as determined in accordance with the Services Agreement) which are then unpaid, divided by the Company as of a Subsequent Closing Date; and Per Share Purchase Price (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and the Remaining Shares issued at each Subsequent Closing are being hereinafter referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred Shares"); provided, however, that the Company's obligation to herein collectively issue Subsequent Closing Shares, and TDC's obliga- tion to purchase such Shares and render services in payment therefor, shall terminate at such time as the "aggregate number of Subsequent Closing DateShares issued pursuant to this Section 2.3 is equal to the number of Remaining Shares." ------------

Subsequent Closings. The Company may sell up to an ------------------- additional 755,000 shares Closing of the Series A Preferred Stock not sold at the Initial Closing to such purchasers purchase and sale of any Additional Leases ("Additional Lease Group"), as it shall select at provided for in this Agreement, will occur on one or more subsequent closings dates after April 15, 2008 (each, each a "Subsequent Closing," "). Unless Purchaser rejects any of the Additional Leases in an Additional Lease Group (as defined on Exhibit 2) because of (a) title defects, (b) because the Leases do not comply with the terms of this Agreement as provided in Section 3(a) and otherwise herein, or (c) because Purchaser has a reasonable good faith reason to believe that a Lease will not result in a well capable of producing commercial quantities of hydrocarbons from the date ------------------ Middle Xxxxxx Shale Formation, Purchaser shall deliver to Agent or its designee, within ten (10) business days of receipt of written (i) notice from Agent identifying the Additional Leases proposed to be acquired, including at a minimum the information concerning each such Additional Lease that is referenced on Exhibit 2 hereto, together with reasonable title information and notice of any material issues or defects in title as to any of the Additional Leases included in the Additional Lease Group which are known to the Agent and (ii) evidence that each Additional Lease to be acquired as part of a proposed Additional Lease Group complies with the provisions of this Agreement, funds at a Subsequent Closing sufficient to purchase the Additional Lease Group submitted by Purchaser for a Subsequent Closing, a "Subsequent Closing Date"), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of the purchase price for the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and when paid shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of Lease Group Purchase Price under this Agreement shall be made by for any and all Additional Leases in the Company as of Additional Lease Group; provided, however, that in no event will a Subsequent Closing Date; and (d) a purchaser occur if the total Lease Group Purchase Price of Additional Leases in an Additional Lease Group to be acquired at any such Subsequent Closing is less than Five Hundred Thousand and No/100ths Dollars ($500,000.00), unless otherwise agreed to in advance in writing with Purchaser, and in no event shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and funds paid by Purchaser for Additional Lease Groups exceed, in the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Dateaggregate, Three Million Dollars ($3,000,000.00)." ------------

Subsequent Closings. The Company may sell up enter into Other Subscription Agreements with Other Investors after the Closing, with any closing thereunder referred to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold as a “Subsequent Closing” and any Other Investor whose subscription has been accepted at the Initial such Subsequent Closing referred to such purchasers as it shall select at a “Subsequent Investor.” On one or more subsequent closings dates to be determined by the Company that occur on or following the Subsequent Closing (eacheach such date, a "“Catch-Up Date”), each Subsequent Closing," and Investor which enters into a Capital Commitment with the date ------------------ Company shall be required to purchase from the Company a number of each Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the Subsequent Investor on such Catch-Up Date(s), such Subsequent ClosingInvestor’s Invested Percentage (as defined below) shall be equal to the Invested Percentage of all prior Investors which have entered into Capital Commitments with the Company (other than any Defaulting Investor) (such amount, a "Subsequent Closing Date"the “Catch-Up Purchase Price” and such purchase, the “Catch-up Purchase”), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of all or a portion of the purchase price for the shares of Series A Preferred Stock being purchased and execution of Catch-Up Purchase Price by such an Investor on a signature page counterpart to this AgreementCatch-Up Date, the Investors' Rights Agreement, Company shall issue to each such Subsequent Investor a number of Shares determined by dividing (x) the CoCatch-Sale Agreement and Up Purchase Price paid minus the Voting Agreement Organizational Expense Allocation (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A by (y) the NAV per Share as of a Catch-Up Date (determined prior to such agreementsissuance). Investors that make a Capital Commitment prior to any Subsequent Closing will not be required to fund Drawdown Purchases on a Drawdown Date until all Subsequent Investors have made their entire Catch-up Purchase. For the avoidance of doubt, --------- any in the event that the Catch-Up Date and a Drawdown Date occur on the same calendar day, such purchaser shall become a party to Catch-Up Date and the Series A Agreements as application of the applicable Subsequent Closing Date, and provisions of this Section 3(f) shall be deemed a "Purchaser" or to have occurred immediately prior to the relevant Drawdown Date. “Invested Percentage” means, with respect to an "Investor" for purposes , the quotient determined by dividing (i) the aggregate amount of the Series A Agreementscontributions made by such Investor by (ii) such Investor’s Capital Commitment. “Organizational Expense Allocation” means, as the case may bewith respect to an Investor, provided that (a) multiplied by (b), where: (a) equals (i) a fraction, the representations and warranties numerator of which is the total Capital Commitments received by the Company shall be deemed made as through such date (including the Investor’s), and the denominator of which is the Initial Closing Datetotal Capital Commitments received by the Company through such date (excluding the Investor’s), minus (ii) 1.00; and (b) equals the representations total amount of organizational and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made offering expenses spent by the Company as of a Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as connection with the "Closing" Company’s formation and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as offering described in the "Closing DateMemorandum." ------------

Subsequent Closings. The Company It is anticipated that new investors reasonably approved by the initial Buyer hereunder (the "New Buyers") may sell up not be purchasing Offered Shares at the initial Closing, but may acquire Offered Shares in an aggregate amount (taken together with the Offered Shares acquired by the initial Buyer) not to an ------------------- additional 755,000 exceed Fourteen Million (14,000,000) shares of the Series A Preferred Common Stock not sold at the Initial Closing additional closings to such purchasers as it shall select at one occur on or more subsequent closings before May 16, 2005 (each, each a "Subsequent Closing," and together with the Initial Closing, the "Closings"; with the date ------------------ of each such any Initial Closing or Subsequent Closing, as applicable, being referred to herein as a "Subsequent Closing Date"), provided however, that Van Wagoner Private Opportunities Fund L.P. shall have txx xxxxx xx acquire up to 2,000,000 Offered Shares at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no first Subsequent Closing may occur after of at least 1,000,000 Offered Shares to New Buyers, or if no such Subsequent Closing occurs, on May 16, 2005. Any such Offered Shares Van Wagoner Private Opportunities Fund L.P. elects not tx xxxxxxxx at the date first Subsequent Closing shall thereafter be available for sale as otherwise provided in this Section 1.b.ii. Any sales of Offered Shares and Warrants at Subsequent Closings shall be made on the terms and conditions set forth in this Agreement and shall be considered to have been issued pursuant hereto. The Schedule of Buyers shall be amended at each Subsequent Closing, without the need to obtain the consent of any party hereto, to reflect the name and address of each New Purchaser participating in such Subsequent Closing, the number of Offered Shares issued at such Subsequent Closings and the other information required by the Schedule of Buyers. Each New Purchaser who participates in a Subsequent Closing shall execute and deliver to the Company a counterpart signature page or joinder to this Agreement pursuant to which is 30 days from each such New Purchaser agrees to be bound by the date of this Amendmentterms and provisions hereof. Upon payment The Company shall deliver to each such New Purchaser at each Subsequent Closing a Compliance Certificate executed by an executive officer of the purchase price for Company, dated the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided certifying (i) that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company in Section 3 of this Agreement were true and correct when made, and are true and correct in all material respects as of a the Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and (ii) that all covenants, agreements, and conditions contained in this Agreement to be performed by the Company on or prior to the Subsequent Closing Date are referred to herein collectively as the have been fully performed or complied with in all material respects."Closing Date." ------------

Subsequent Closings. The Company It is anticipated that new investors reasonably approved by the initial Buyer hereunder (the "New Buyers") may sell up not be purchasing Offered Shares at the initial Closing, but may acquire Offered Shares in an aggregate amount (taken together with the Offered Shares acquired by the initial Buyer) not to an ------------------- additional 755,000 exceed Fourteen Million (14,000,000) shares of Common Stock at additional closings to occur on or before the Series A Preferred Stock not sold at thirtieth (30th) day following the Initial Closing to such purchasers as it shall select at one or more subsequent closings date hereof (each, each a "Subsequent Closing," and together with the Initial Closing, the "Closings"; with the date ------------------ of each such any Initial Closing or Subsequent Closing, as applicable, being referred to herein as a "Subsequent Closing Date"), provided however, that Van Wagoner Private Opportxxxxxxx Xxxd L.P. shall have the right to acquire up to 2,000,000 Offered Shares at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no first Subsequent Closing may occur of at least 1,000,000 Offered Shares to New Buyers, or if no such Subsequent Closing occurs, on the thirtieth (30th) day after the date Initial Closing. Any such Offered Shares Van Wagoner Private Opportxxxxxxx Xxxd L.P. elects not to purchase at the first Subsequent Closing shall thereafter be available for sale as otherwise provided in this Section 1.b.ii. Any sales of Offered Shares and Warrants at Subsequent Closings shall be made on the terms and conditions set forth in this Agreement and shall be considered to have been issued pursuant hereto. The Schedule of Buyers shall be amended at each Subsequent Closing, without the need to obtain the consent of any party hereto, to reflect the name and address of each New Purchaser participating in such Subsequent Closing, the number of Offered Shares issued at such Subsequent Closings and the other information required by the Schedule of Buyers. Each New Purchaser who participates in a Subsequent Closing shall execute and deliver to the Company a counterpart signature page or joinder to this Agreement pursuant to which is 30 days from each such New Purchaser agrees to be bound by the date of this Amendmentterms and provisions hereof. Upon payment The Company shall deliver to each such New Purchaser at each Subsequent Closing a Compliance Certificate executed by an executive officer of the purchase price for Company, dated the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided certifying (i) that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company in Section 3 of this Agreement were true and correct when made, and are true and correct in all material respects as of a the Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and (ii) that all covenants, agreements, and conditions contained in this Agreement to be performed by the Company on or prior to the Subsequent Closing Date are referred to herein collectively as the "Closing Datehave been fully performed or complied with in all material respects." ------------

Subsequent Closings. The Company may sell up enter into Other Subscription Agreements with Other Investors after the initial Drawdown Date, with any closing thereunder referred to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold as a “Subsequent Closing” and any Other Investor whose subscription has been accepted at the Initial such Subsequent Closing referred to such purchasers as it shall select at a “Subsequent Investor.” On one or more subsequent closings dates to be determined by the Company that occur on or following the Subsequent Closing (eacheach such date, a "“Catch-Up Date”), each Subsequent Closing," and Investor which enters into a Capital Commitment with the date ------------------ Company may be required, in the Company’s sole discretion, to purchase from the Company a number of each Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the Subsequent Investor on such Catch- Up Date(s), such Subsequent ClosingInvestor’s Invested Percentage (as defined below) shall be equal to the Invested Percentage of all prior Investors which have entered into Capital Commitments with the Company (other than any Defaulting Investor (as defined below)) (such amount, a "Subsequent Closing Date"the “Catch-Up Purchase Price” and such purchase, the “Catch-Up Purchase”), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of all or a portion of the purchase price for the shares of Series A Preferred Stock being purchased and execution of Catch-Up Purchase Price by such an Investor on a signature page counterpart Catch-Up Date, “Invested Percentage” means, with respect to this Agreementan Investor, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement quotient determined by dividing (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (ai) the representations and warranties aggregate amount of contributions made by such Investor by (ii) such Investor’s Capital Commitment. Catch-Up Purchases may, in the sole discretion of the Company shall be deemed made as priced above NAV to seek to appropriately allocate the initial organizational and offering expenses of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing DateCompany." ------------

Subsequent Closings. The Company may sell up to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold (i) Each Purchaser at the Initial Closing shall have the option, exercisable in its sole and exclusive discretion at any time and from time to such purchasers time following the date of the Shareholder Approval of Increase in Authorized Shares (as it shall select defined in Section 7(a) below) and on or before June 30, 2014 (the “Expiration Date”), to purchase (and upon receipt of a Demand Notice (as defined below) from a Purchaser, the Company must sell) at one or more subsequent closings Closings on or before the Expiration Date (each such Closing, a “Subsequent Closing”), on the same terms and conditions as those contained in this Agreement, additional Shares and additional Warrants in an aggregate amount not to exceed the number of Shares and the number of Warrant Shares set forth opposite such Purchaser’s name under the heading “Subsequent Closings” on Schedule I hereto. Any Purchaser electing to purchase additional Shares and an additional Warrant at a Subsequent Closing shall provide written notice thereof to the Company, stating the number of additional Shares to be purchased and the number of Warrant Shares to be subject to the accompanying Warrant (which shall equal seventy-five percent (75%) of the number of additional Shares to be purchased at such Subsequent Closing), duly executed by such Purchaser and delivered to the Company in accordance with Section 9(d) (the “Demand Notice”). Following its delivery of a Demand Notice to the Company (and subject to the satisfaction or waiver of the conditions set forth in Subsections (e) and (g) of this Section 2), such Purchaser shall purchase from the Company, and the Company shall issue and sell to such Purchaser, at the Per Share Purchase Price, the additional Shares and Warrant as set forth in the Demand Notice. Each Subsequent Closing shall occur at such location, date and time as may be agreed upon between the Company and the Purchaser exercising the Purchaser Demand (each, a "Subsequent Closing," and the date ------------------ of each such Subsequent Closing, a "“Subsequent Closing Date"”), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of the purchase price for the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are may also be referred to herein collectively in this Agreement as the "a “Closing" ,” and the ------- Initial Closing Date and each Subsequent Closing Date are may also be referred to herein collectively in this Agreement as the "a “Closing Date." ------------”

Subsequent Closings. The Company Fund may sell up hold closings subsequent to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold at the Initial Closing Date (each date on which a subsequent closing is held, a “Subsequent Closing Date”) and issue additional Shares (including Shares of any New Class (as defined below)) to any Member (including any Additional Member (as defined below)) on terms and conditions as determined by the Board (as defined below); provided, however, that no Member shall be required to purchase such purchasers additional Shares. The Fund may solicit subscriptions for additional Capital Commitments for a period of twelve (12) months from the Initial Closing Date (the “Offering Period”). The Offering Period may be extended by up to six (6) months by the Board as it shall select at may deem appropriate. If the Fund enters into a Subscription Agreement with one or more subsequent closings investors after the initial capital drawdown from investors (the “Initial Drawdown” and the date on which the Initial Drawdown occurs, the “Initial Drawdown Date”), each such investor will be required to make purchases of Shares (each, a "Subsequent Closing," and “Catch-up Purchase”) on one or more dates to be determined by the date ------------------ Fund. The aggregate purchase price of each the Catch-up Purchases will be equal to an amount necessary to ensure that, upon payment of the aggregate purchase price, such Subsequent Closing, investor will have contributed the same percentage of its Capital Commitment to the Fund as all Members whose subscriptions were accepted at previous closings. Catch-up Purchases will be made at a "Subsequent Closing Date"per-share price as determined by the Board (including any committee thereof), at which price will be determined prior to the issuance of such Shares and in accordance with the limitations under Section 23 of the 1940 Act. In order to more fairly allocate organizational and other expenses among all of our Members, investors subscribing after the Initial Drawdown will be required to pay a ----------------------- price of not less than $1.00 per share above net asset value reflecting a variety of factors, including, without limitation, the total amount of our organizational and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from other expenses amortized and/or incurred between the date of this Amendmentthe Initial Drawdown and the relevant subsequent capital drawdown. Upon payment of In addition to all legal remedies available to the Fund, failure by a Member to purchase price for the shares of Series A Preferred Stock being purchased and execution additional Shares when capital is called in respect of a signature page counterpart Member’s Capital Commitment will (following a cure period of five (5) business days) result in that Member being subject to certain default provisions set forth in Section 7.2(e) of this Agreement, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except . Defaulting Members may also forfeit their right to add such purchaser's name to Exhibit A to such agreements, --------- participate in purchasing additional Shares on any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" future drawdown date or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as of a Subsequent Closing Date; and (d) a purchaser otherwise participate in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Datefuture investments in Shares." ------------

Subsequent Closings. The Company may sell up to an ------------------- additional 755,000 If any of the authorized shares of the Series A B Preferred Stock are not sold at the Initial Closing to such purchasers as it Closing, the Company shall select have the right, at one or more subsequent closings (each, each a "“Subsequent Closing," ” and the date ------------------ of each such Subsequent Closing, a "Subsequent Closing Date"), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of the purchase price for the shares of Series A Preferred Stock being purchased and execution of a signature page counterpart to this Agreementtogether, the Investors' Rights Agreement, the Co-Sale Agreement and the Voting Agreement “Subsequent Closings”) to be held within one hundred eighty (collectively, the "Series A Agreements" and each as defined below180) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as of the applicable Subsequent Closing Date, and shall be deemed a "Purchaser" or an "Investor" for purposes of the Series A Agreements, as the case may be, provided that (a) the representations and warranties of the Company shall be deemed made as days of the Initial Closing Date; , to sell the remaining authorized but unissued shares of Series B Preferred to one or more additional purchasers as determined by the Company but who shall not be Advanced Digital Information Corporation, Overland Storage, Inc. or Storage Tech, Inc., or to a Purchaser hereunder who wishes to acquire additional shares of Series B Preferred. All such sales shall be made on the terms and conditions set forth in this Agreement, and all of the ancillary agreements contemplated hereby, including, without limitation, the Amended and Restated Investor Rights Agreement in substantially the form attached hereto as Exhibit D (bthe “Investor Rights Agreement”) and the Amended and Restated Voting Agreement (the “Voting Agreement”) in substantially the form attached hereto as Exhibit E, and the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be made by the Company as set forth in Section 3 hereof and by the Purchasers as set forth in Section 4 hereof, such that any and all provisions of this Agreement that relate to the Initial Closing will also apply to such sales. Each investor who purchases Series B Preferred at a Subsequent Closing Date; shall sign a signature page to this Agreement and (d) will thereby be deemed to be a purchaser in any “Purchaser” for all purposes under this Agreement and shall sign the Investor Rights Agreement, Voting Agreement and such Subsequent Closing shall not be entitled to purchase any Warrantsother documents as reasonably requested by the Company. The terms “Closing” and “Closing Date” shall refer to the closing of the purchase and sale of Series B Preferred and/or issuance of Series A-1 Preferred with respect to a particular Purchaser, irrespective of whether such purchase and sale takes place at the Initial Closing and each or a Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Date." ------------

Subsequent Closings. The Company Fund may sell up enter into Other Subscription Agreements with Other Investors after the Closing, with any closing thereunder referred to an ------------------- additional 755,000 shares of the Series A Preferred Stock not sold as a “Subsequent Closing” and any Other Investor whose subscription has been accepted at the Initial such Subsequent Closing referred to such purchasers as it shall select at a “Subsequent Investor.” On one or more subsequent closings dates to be determined by the Fund that occur on or following the Subsequent Closing (eacheach such date, a "“Catch-Up Date”), each Subsequent Closing," and Investor which enters into a Capital Commitment with the date ------------------ Fund may be required, in the Fund’s sole discretion, to purchase from the Fund a number of each Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the Subsequent Investor on such Catch-Up Date(s), such Subsequent ClosingInvestor’s Invested Percentage (as defined below) shall be equal to the Invested Percentage of all prior Investors which have entered into Capital Commitments with the Fund (other than any Defaulting Investors (as defined below) or Excluded Investors (as defined below)) (such amount, a "Subsequent Closing Date"the “Catch-Up Purchase Price” and such purchase, the “Catch-Up Purchase”), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no Subsequent Closing may occur after the date which is 30 days from the date of this Amendment. Upon payment of all or a portion of the purchase price for the shares of Series A Preferred Stock being purchased and execution of Catch-Up Purchase Price by such an Investor on a signature page counterpart to this AgreementCatch-Up Date, the Investors' Rights AgreementFund shall issue to each such Subsequent Investor a number of Shares equal to the portion of the Catch-Up Purchase Price paid divided by the then-current transaction price per Share as of such Catch-Up Date, determined in accordance with the Coprovisions of Section 3(c). Unless the Fund determines otherwise, in its sole discretion, Investors that make a Capital Commitment prior to any Subsequent Closing will not be required to fund Drawdown Purchases on a Drawdown Date until all Subsequent Investors have made their entire Catch-Sale Agreement Up Purchase. For the avoidance of doubt, in the event that the Catch-Up Date and a Drawdown Date occur on the same calendar day, such Catch-Up Date and the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements as application of the applicable Subsequent Closing Date, and provisions of this Section 3(e) shall be deemed a "Purchaser" or to have occurred immediately prior to the relevant Drawdown Date. “Invested Percentage” means, with respect to an "Investor" for purposes of , the Series A Agreements, as the case may be, provided that quotient determined by dividing (ai) the representations and warranties aggregate amount of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of this Agreement shall be contributions made by the Company as of a Subsequent Closing Date; and such Investor by (dii) a purchaser in any such Subsequent Closing shall not be entitled to purchase any Warrants. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing DateInvestor’s Capital Commitment." ------------

Subsequent Closings. The Company may sell up enter into other Subscription Agreements with other subscribers after the Closing Date, with any closing thereunder referred to an ------------------- additional 755,000 shares as a "Subsequent Closing" and any other subscriber whose subscription has been accepted at such Subsequent Closing referred to as a "Subsequent Subscriber." Notwithstanding the provisions of the Series A Preferred Stock not sold at the Initial Closing to such purchasers as it shall select at Sections 3(a) and 3(c), on one or more subsequent closings dates to be determined by the Company that occur on or following the Subsequent Closing but no later than the next succeeding Drawdown Date (each, a "Subsequent Closing," and the date ------------------ of each such Subsequent Closing, a "Subsequent Closing Catch-Up Date"), at a ----------------------- price of not less than $1.00 per share and on terms no more favorable than those contained herein. Notwithstanding the foregoing, no each Subsequent Closing may occur after the date which is 30 days Subscriber shall be required to purchase from the date Company a number of Shares with an aggregate purchase price necessary to ensure that, upon payment of the aggregate purchase price for such Shares by the Subsequent Subscriber in the aggregate over all applicable Catch-Up Dates, such Subsequent Subscriber's Invested Percentage shall be equal to the Invested Percentage of all prior Subscribers (other than any Defaulting Subscribers or Excluded Subscribers) (the "Catch-Up Purchase Price"). For the purposes of this AmendmentSection 3(b), "Invested Percentage" means, with respect to a Subscriber, the quotient determined by dividing (i) the aggregate amount of contributions made by such Subscriber pursuant to Section 3(a) and this Section 3(b) by (ii) such Subscriber's Capital Commitment. Upon payment of all or a portion of the purchase price for Catch-Up Purchase Price by the shares of Series A Preferred Stock being purchased and execution of Subscriber on a signature page counterpart to this AgreementCatch-Up Date, the Investors' Rights Agreement, Company shall issue to each such Subsequent Subscriber a number of Shares determined by dividing (i) the Coportion of the Catch-Sale Agreement and Up Purchase Price contributed at such Catch-Up Date by (ii) the Voting Agreement (collectively, the "Series A Agreements" and each as defined below) ------------------- and without need for an amendment thereto aside from this Amendment, except to add such purchaser's name to Exhibit A to such agreements, --------- any such purchaser shall become a party to the Series A Agreements Price Per Share as of the applicable Subsequent Closing Catch-Up Date. For the avoidance of doubt, in the event that a Catch-Up Date and a Capital Drawdown Date occur on the same calendar day, the Catch-Up Date (and the application of the provisions of this Section 3(b)) shall be deemed a "Purchaser" or an "Investor" for purposes to have occurred immediately prior to the relevant Capital Drawdown Date. At each Capital Drawdown Date following any Subsequent Closing, all Subscribers, including Subsequent Subscribers, shall purchase Shares in accordance with the provisions of Section 3(a); provided, however, that notwithstanding the Series A Agreementsforegoing, as the case may bedefinition of Drawdown Share Amount and the provisions of Section 3(c), provided that (a) the representations and warranties of the Company shall be deemed made as of the Initial Closing Date; (b) the representations and warranties of each purchaser shall be deemed made as of the applicable Subsequent Closing Date; (c) no further deliveries pursuant to Section 4 of nothing in this Agreement shall be made prohibit the Company from issuing Shares to Subsequent Subscribers at a per share price greater than the net asset value per Share. In the event that any Subscriber is permitted by the Company as of a Subsequent Closing Date; and (d) a purchaser in any such Subsequent Closing shall not be entitled to make an additional capital commitment to purchase any WarrantsShares on a date after its initial subscription has been accepted, such Subscriber will be required to enter into a separate subscription agreement with the Company (such separate agreement may be a short form subscription agreement), it being understood and agreed that such separate subscription agreement will be considered to be an other subscription agreement for the purposes of this Agreement. The Initial Closing and each Subsequent Closing are referred to herein collectively as the "Closing" and the ------- Initial Closing Date and Subsequent Closing Date are referred to herein collectively as the "Closing Date." ------------(c)