Common use of Certain Covenants Clause in Contracts

Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust Each of HCI and the Company hereby covenant and agree with Clorox shall (i) promptly make or cause to be made all filings required of each Underwriter as follows: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale of them or any of their respective Subsidiaries or Affiliates under the securities HSR Act or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and any other applicable merger control or similar Law with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes transactions contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days hereby after the date of this Agreement, not (ii) use commercially reasonable efforts to offercomply at the earliest practicable date with any request for additional information, issuedocuments, sellor other materials received by each of them or any of their respective Affiliates from the FTC, contract the Antitrust Division or any other Governmental Authority in respect of such filings or such transactions, and (iii) cooperate with each other in connection with any such filing (including, to sell the extent permitted by applicable Law and subject to all applicable privileges (including the attorney client privilege), providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or otherwise dispose changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any additional securities of the Trust FTC, the Antitrust Division or the Company substantially similar other Governmental Authorities under any Antitrust Laws with respect to the Capital Securities any such filing or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to transaction. Each party hereto shall use its best commercially reasonable efforts to cause its officers, directors and affiliates not furnish to (i) take, directly each other all information required for any application or indirectly prior other filing to termination of be made pursuant to any applicable Law in connection with the underwriting syndicate transactions contemplated by this Agreement. Subject to applicable Law, each party hereto shall promptly inform the other parties hereto of any oral communication with, and provide copies of written communications with, any action designed Governmental Authority regarding any such filings or any such transaction. Subject to stabilize applicable Law, no party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or manipulate other inquiry without giving the price other parties hereto prior notice of the Capital Securities meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to applicable Law and subject to all applicable privileges (including the attorney client privilege), the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under the HSR Act or any security other applicable merger control or similar Law. Any party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.4 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the Companyrecipient and will not be disclosed by such outside counsel to employees, officers, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation directors of the price recipient, unless express written permission is obtained in advance from the source of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebymaterials.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) to advise furnish a copy of each proposed Free Writing Prospectus to the Representatives promptly and (if requested by counsel for the RepresentativesUnderwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act RegulationsAct, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto; (de) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (f) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (eg) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries; (fh) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law; (i) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission; (gj) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representatives to the filing; (ik) to furnish promptly to the Representatives a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.; (hl) to furnish to the Representatives, not less than two business days before filing with the Commission, during the period referred to in paragraph (i) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during the period of five years hereafter to file all such documents in the manner and within the time periods required by the Exchange Act and the Exchange Act Regulations; (m) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the ProspectusProspectus and the Disclosure Package; (in) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jo) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market New York Stock Exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust Issuer and the Company hereby covenant Guarantors, jointly and severally, agree with each Underwriter as followsthe Initial Purchasers: (a) to furnish such information to the Initial Purchasers promptly, without charge, during the period referred to in Section 5(c) hereof, as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution many copies of the Capital SecuritiesOffering Circular and any amendments and supplements thereto as they may reasonably request; (b) that, during such period after the date hereof and prior to prepare the Prospectus in a form approved completion of the distribution of the Securities by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust NRF and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Issuer will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Final Circular (including by means of any filings with the Commission made pursuant to the Exchange Act or Prospectus the rules and to file no regulations of the Commission promulgated thereunder and will not effect such amendment or supplement without the consent of the Representative, not to be unreasonably withheld, except that nothing contained in this Section 5(b) shall prohibit NRF and the Issuer from filing with the Commission any report or schedule which NRF and the Representatives shall reasonably object Issuer, on the advice of counsel, believes is required to be filed in writing; (e) order to furnish comply with applicable law; neither the consent of the Representative, nor the Representative’s delivery of any such amendment or supplement, will constitute a waiver of any of the conditions set forth in Section 7 hereof; and if at any time prior to the Underwriters for completion of the distribution of the Securities by the Initial Purchasers, NRF and the Issuer have issued or shall have issued any written communication, which would be deemed a period “free writing prospectus” as defined in Rule 405 of five years from the date Securities Act Regulations if the placement of the Securities contemplated by this Agreement were conducted as a public offering made pursuant to a registration statement filed with the Commission under the Securities Act (a “Supplemental Offering Document”), and there occurred or occurs an event or development as a result of which such Supplemental Offering Document conflicted or would conflict with the information contained in the Disclosure Package or the Final Circular or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, NRF and the Issuer will (i) as soon as availablenotify the Representative of the same (this clause (i) does not apply to statements in or omission from any document in the Disclosure Package, copies any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to NRF or the Issuer by or on behalf of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockthe Initial Purchasers specifically for use therein), (ii) as soon as practicable after subject to the filing thereofrequirements of this Section 5(b), copies of all reports filed by prepare at their own expense and provide to the Company Initial Purchasers pursuant to Section 5(a) hereof, an amendment or the Trust with the Commissionsupplement that will correct such statement or omission, the NASD or any securities exchange and (iii) supply any supplemented or amended Supplemental Offering Document to the Initial Purchasers and counsel for the Initial Purchasers without charge in such other information quantities as the Underwriters may be reasonably request regarding the Trust, the Company and/or the Subsidiariesrequested; (fc) that, if at any time prior to advise the Underwriters promptly completion of the happening sale of the Securities by the Initial Purchasers, any event known to occurs as a result of which the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichFinal Circular, in the judgment of the Trust and the Companyas then amended or supplemented, would require the making of include any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may if it should be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment amend or supplement before filing any such amendment or supplement the Final Circular to comply with applicable law, NRF and the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, Issuer will promptly (i) signed copies notify the Representative of the Registration Statementsame (this clause (i) does not apply to statements in or omission from any document in the Disclosure Package, as initially filed any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to NRF or the Commission, and Issuer by or on behalf of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference the Initial Purchasers specifically for use therein), (ii) copies subject to the requirements of any document incorporated by reference in Section 5(b) hereof prepare at their own expense and provide to the Prospectus (including exhibits theretoInitial Purchasers pursuant to Section 5(a) hereof, an amendment or supplement that will correct such statement or omission or effect such compliance, and (iii) supply any supplemented or amended Final Circular to the Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as may be reasonably requested; (d) to cooperate with the Representative for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative reasonably may designate and will maintain such qualifications in effect as long as reasonably requested by the Representative for the sale of the Securities by the Initial Purchasers; provided, however, that NRF and the Issuer shall not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject; and NRF and the Issuer will promptly advise the Representative of the receipt by the Issuer of any written notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (e) to use commercially reasonable efforts to do and perform all things reasonably required to be done and performed by it under this Agreement prior to or after the Initial Closing Date and to satisfy all conditions precedent on their part to the obligation of the Initial Purchasers to purchase and accept delivery of the Securities; (f) that none of the Issuer, the Guarantors, any of their respective Affiliates or any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to whom the Issuer and the Guarantors express no representations or agreements) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities under the Securities Act; (g) that none of the Issuer, the Guarantors, any of their respective Affiliates or any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as to whom the Issuer and the Guarantors express no representations or agreements) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Securities; (h) so long as delivery any of a prospectus by an Underwriter or dealer may be required by the Securities Act or are “restricted securities” within the meaning of Rule 144(a)(3) of the Securities Act Regulations, at any time at which the Issuer is not then subject to Section 13 or 15(d) of the Exchange Act, to provide at the Issuer’s expense to each holder, each beneficial owner and each prospective purchaser (as many copies designated by such holder) of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as Securities, upon the Representatives may reasonably request.request of such holder, beneficial owner or prospective purchaser, the information required to be provided by Rule 144A(d)(4) of the Securities Act Regulations; (hi) to cooperate with the Representative and use their commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC; (j) to apply the net proceeds of from the sale of the Capital Securities and by the Debentures Issuer in accordance with the statements under the caption "“Use of Proceeds" ” in the Prospectus; (i) to make generally available to its security holders Disclosure Package and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketFinal Circular; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreementindirectly, any action which is designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, has constituted or which might in the future reasonably be expected to cause or result in, the in stabilization or manipulation of the price of the Capital Securities or any security of the Company, Issuer and the Guarantors to facilitate the sale or resale of any the Securities; (l) in connection with the offer and sale of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital not to offer Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities convertible into or exchangeable or exercisable or redeemable for the Securities in a manner in violation of the Company; andSecurities Act; (m) not to distribute any prospectus or other offering material, other than the Disclosure Package and the Final Circular, in connection with the offer and sale of the Securities; (n) that NRF will use its best efforts to meet the provisions requirements to qualify as a REIT under the Code until its Board of Directors determines that it is no longer in the engagement letter agreement dated March 5best interests of NRF to qualify as a REIT; (o) beginning with the taxable year that begins on the first day that NRE ceases to be a “qualified REIT subsidiary” of NRF, 1999, between NRE will use its best efforts to meet the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive requirements to qualify as a REIT under the execution and delivery Code until its board of this Agreement directors determines that it is no longer in the best interest of NRE to qualify as a REIT; (p) that the transfer restrictions and the consummation other provisions set forth in the Disclosure Package and the Final Circular under the caption “Notice to Investors,” including the legend required thereby, shall apply to the Securities except as otherwise agreed by NRF, the Issuer and the Representative; and (q) that NRF and the Issuer will not, and will not permit any of the transactions contemplated herebyits Affiliates to, resell any Securities that have been acquired by any of them.

Certain Covenants. The Trust Issuers jointly and the Company hereby severally covenant and agree with each Underwriter as followsthe Initial Purchaser that: (ai) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto unless the Initial Purchaser shall have been advised and furnished a copy for a reasonable period of time prior to furnish such information the proposed amendment or supplement and as to which the Initial Purchaser shall not have given its consent (which consent shall not be unreasonably withheld). The Issuers will promptly, upon the reasonable request of the Initial Purchaser or counsel for the Initial Purchaser, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be required and otherwise to necessary in connection with the resale of the Securities by the Initial Purchaser. (ii) The Issuers will cooperate with the Initial Purchaser in qualifying arranging for the Capital qualification of the Securities for offering and sale under the securities or blue sky "Blue Sky" laws of such states jurisdictions as the Representatives Initial Purchaser may designate and to maintain will continue such qualifications in effect so for as long as may be necessary to complete the resale of the Securities by the Initial Purchaser; provided, however, that in connection therewith none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in excess of a nominal amount in respect of doing business in any jurisdiction in which it is not otherwise subject. (iii) If, at any time prior to the completion of the resale by the Initial Purchaser of the Notes or the Private Exchange Notes, any event shall occur as a result of which it is necessary, in the opinion of counsel for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchaser, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Final Memorandum in order to make such Final Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or Prospectus and if for any other reason it shall be necessary to file no such amendment amend or supplement the Final Memorandum in order to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecomply with applicable laws, copies of all annual, quarterly and current reports rules or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commissionregulations, the NASD Issuers shall (subject to Section 5(i)) forthwith amend or any securities exchange and (iii) supplement such other information Final Memorandum at their own expense so that, as the Underwriters may reasonably request regarding the Trustso amended or supplemented, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would such Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingmisleading and will comply with all applicable laws, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments rules or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;regulations. (giv) to furnish the Representatives and counsel for the UnderwritersThe Issuers will, without charge, (i) signed copies of provide to the Registration Statement, as initially filed with Initial Purchaser and to counsel for the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, Initial Purchaser as many copies of each Preliminary Memorandum or Final Memorandum or any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements amendment or supplement thereto as the Representatives Initial Purchaser may reasonably request. (hv) None of the Issuers or any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities. (vi) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchaser (a) as soon as available, a copy of each report or other communication (financial or otherwise) of the Company mailed to the Trustee or holders of the Securities or stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company may be listed, and (b) from time to time such other information concerning the Issuers as the Initial Purchaser may reasonably request. (vii) The Company will apply the net proceeds of from the sale of the Capital Securities and the Debentures in accordance with the statements as set forth under the caption "Use of Proceeds" in the Prospectus;Final Memorandum. (viii) Prior to the Closing Date, the Company will furnish to the Initial Purchaser, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim consolidated financial statements of the Company and the Subsidiaries, for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum. (ix) The Company will not, and will not permit any of Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. (x) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act. (xi) The Issuers will use their best efforts to (i) permit the Securities to make generally available to its security holders and to the Representatives as soon as practicable, but be designated PORTAL securities in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. (the "NASD") relating to trading in the Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company's fiscal year. (xii) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), an earnings statement complying the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Section 11(a) of the Securities Act (Regulation S and will not, except in form, at the option of the Company, complying accordance with the provisions of Rule 158 Regulation S, if applicable, issue any such Securities in the form of definitive securities. (xiii) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (other than by reason of a default or omission by the Initial Purchaser of its obligations hereunder or pursuant to Section 11(i)-(v), in which case each party is responsible for its own expenses) or if this Agreement shall be terminated by the Initial Purchaser because of any failure or refusal on the part of the Securities Act Regulations) covering a period of 12 months beginning after Issuers to comply with the effective date material terms or fulfill any of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date material conditions of this Agreement, not the Company agrees to offerreimburse the Initial Purchaser for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Initial Purchaser) incurred by the Initial Purchaser in connection herewith, issue, sell, contract but in no event will the Company be liable to sell or otherwise dispose the Initial Purchaser for damages on account of any additional securities loss of anticipated profits from the sale of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities;Securities. (mxiv) to The Issuers will use its their commercially reasonable best efforts to cause its officers, directors do and affiliates not perform all things required to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated be done and performed by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of them under this Agreement and the consummation other Basic Documents prior to or after the Closing Date and to satisfy all conditions precedent on their part to the obligations of the transactions contemplated herebyInitial Purchaser to purchase and accept delivery of the Securities.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXXEDGAR, except to the extent permitted by Regulation S-T; (cd) to advise xx xdvise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (de) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing; (ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the TrustCompany and the Subsidiaries; provided, that the Company and/or shall not be required to furnish to the SubsidiariesUnderwriters any such reports or communications that have been filed with the Commission and are available on the Commission's EDGAR system; (fg) to advise the Underwriters promptly of the happening xxxxening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with applicable law; (h) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission; (gi) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and will not file any such amendment, without charge, supplement or Prospectus to which the Representative reasonably objects; (ij) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request; (k) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.; (hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus; (im) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jn) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market New York Stock Exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange; (ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lp) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; or (C) options to purchase Common Stock that are granted automatically in accordance with the terms of the Company's directors' stock option plan; (mq) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; (r) to cause certain stockholders, officers and directors of the Company, listed on Schedule IV, to furnish to the Representative, prior to the first Date of Delivery, a letter or letters, substantially in the form of Annex C hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 90 days, except in the case of Shell for 45 days, from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters; and (ns) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyRegistration Statement.

Certain Covenants.  The Trust Borrower covenants and the Company hereby covenant and agree with each Underwriter agrees that so long as follows:this Agreement shall remain in effect, Borrower shall:  (a) to furnish such information as may be required Pay all sums due and otherwise to cooperate in qualifying the Capital Securities for offering and sale owing under the securities or blue sky laws of such states as the Representatives may designate and Note pursuant to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;its terms;  (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (Do or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created cause to be transmitted done all things necessary to preserve and keep in full force and effect its existence under the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;laws of its state of formation;  (c) Give prompt notice to advise the Representatives promptly Lender of (i) any proceedings of which the Borrower has notice instituted by or against the Borrower, and (if requested by ii) any other action, event or condition of any nature which in either case the Representatives) management of the Borrower reasonably believes could have, lead to confirm such advice or result in writinga material adverse effect upon the business, when assets or­ financial condition of the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations;Borrower;  (d) to advise the Representatives immediatelyRefrain from mortgaging , confirming such advice in writingpledging, of (i) the receipt granting or permitting any security interest, lien or encumbrance of any comments from, or nature in any request by, the Commission for amendments or supplements amount to the Registration Statement or Prospectus or for additional information exist with respect theretoto any of the Borrower's property including without limitation the Property, except where such security interest, lien or (ii) encumbrance is for the issuance benefit of the Lender or has otherwise been approved by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possibleLender; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) Provide to furnish Lender all of the deliverables as and when required pursuant to the Underwriters for a period of five years from the date of this Agreement Section 2.04 herein (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commissioncollectively, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries;"Financial Statements");  (f) to advise the Underwriters promptly Perform all of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered Borrower's obligations under the Securities Act Regulations whichFirst Mortgage encumbering the Property including without limitation, payment of all sums due thereunder, in a timely manner. Upon the maturity (by acceleration or otherwise, or upon prepayment thereof) of the First Mortgage held by Lender (or its assignee) covering the Property, or upon prepayment thereof, all amounts due hereunder shall simultaneously become due and payable;  (g) Not incur any additional indebtedness except, in the judgment ordinary course of the Trust business, with customary time payment arrangements with vendors and the Company, would require the making of any change in the Prospectus then being used so suppliers; and  (h) Pay all sums that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change be paid in order to enforce the Note and to furnish enforce and/or to record the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus Security Instrument and any amendments thereof agreement or any other documentation executed and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures delivered in accordance connection with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offerwhether such sums be in the nature of recording fees, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities mortgage tax or any securities convertible into or exchangeable for or that represent the right to receive any other expense in connection with such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.recording. 

Certain Covenants. The Trust Borrower covenants and agrees with Lenders and Collateral Agent for the Company hereby covenant and agree with each Underwriter as followsbenefit of Lenders that: (a) Borrower has and will have good and merchantable title to furnish all of its assets, including the Collateral, in each case as from time to time owned or acquired by it, and shall keep the Collateral free and clear of all Liens, other than those granted to Collateral Agent. Borrower will defend such information as may be required title against the claims and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws demands of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities;all Persons whomsoever. (b) Borrower will faithfully preserve and protect Collateral Agent's Liens in the Collateral and will, at its own cost and expense, cause said Liens to prepare be perfected and continued perfected, and for such purpose Borrower will from time to time at the Prospectus in a form approved by request of Collateral Agent and at the Underwriters expense of Borrower, make, execute, acknowledge and deliver, and file or record, or cause to be filed or recorded, in the proper filing places, all such Prospectus with instruments, documents and notices, including, without limitation, financing statements and continuation statements, as Collateral Agent may deem necessary or advisable from time to time in order to perfect and continue perfected said security interest. Borrower will do all such other acts and things and make, execute, acknowledge and deliver all such other instruments and documents, including, without limitation, further security agreements, pledges, endorsements, assignments and notices, as Collateral Agent may deem necessary or advisable from time to time in order to perfect and preserve the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), priority of said Liens as a first and only Lien on and security interest in the day following the execution and delivery of this Agreement and to furnish promptly (and with respect Collateral prior to the initial delivery rights of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (all other Persons therein or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;thereto. (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writingBorrower will not, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representativeseach Lender, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly borrow or indirectly prior permit any Person to termination of borrow against the underwriting syndicate contemplated by Collateral other than the Loans to Borrower from Lenders pursuant to this Agreement; (ii) create, incur, assume or suffer to exist any action designed Lien with respect to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or Collateral; (iii) pay permit any levy or agree attachment to pay be made against any of the Collateral except any levy or attachment relating to this Agreement; or (iv) permit any financing statement to be on file with respect to any person any compensation for soliciting any order to purchase any other securities of the Company; andCollateral, except financing statements in favor of Collateral Agent (for the benefit of all Lenders). (nd) that the provisions Risk of loss of, damage to or destruction of the engagement letter agreement dated March 5, 1999, between Collateral is and shall remain upon Borrower. Borrower will insure the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.Collateral as provided in Section VII.3

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. 5:30 p.m. (New York City time), ) on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. 5:30 p.m. (New York City time) on the second day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (de) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing; (ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesCompany; (fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter to promptly furnish at the Company’s own expense to the Underwriters and to dealers copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus, as amended or supplemented, will comply with the law; (h) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission; (gi) prior to filing with the Commission any amendment to the Registration Statement or supplement or amendment to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters for their review, without charge, and not to file any such proposed amendment or supplement to which the Representative reasonably objects; (ij) to furnish promptly upon request from the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference the foregoing as the Representative may reasonably request; (k) during the period referred to in paragraph (f) above, to file with the Commission all documents required to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities rules and regulations thereunder (the “Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.”); (hl) to apply the net proceeds of the sale of the Capital Securities and Shares in the Debentures in accordance with the statements manner described under the caption "“Use of Proceeds" ” in the Prospectus; (im) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 twelve (12) months beginning after the effective date of the Registration Statement; (jn) until the Company’s Board of Directors determines it not to be in the best interests of the Company and its stockholders, to use its best commercially reasonable efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market and New York Stock Exchange and, so long as the Shares are listed on the New York Stock Exchange, to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market New York Stock Exchange of companies that have securities that are traded in listed on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange; (ko) until the Company’s Board of Directors determines it not to be in the best interests of the Company and its stockholders, to engage and maintain, at its the Company’s expense, a registrar and transfer agent for the Capital SecuritiesShares; (lp) to refrain during a period of one hundred eighty (180) days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative (which consent may be withheld at the sole discretion of the Representative), for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, establishing an open “put equivalent position” within the meaning of Rule 16a-1(h) under the Exchange Act, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequences of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that the Company may issue (A) the Shares to be sold hereunder, (B) shares of Common Stock or options to purchase shares of Common Stock, or shares of Common Stock upon the exercise of options, pursuant to any stock option, stock bonus or other stock plan or arrangement described in the Prospectus, but only if the holders of such shares, options, or shares issued upon exercise of such options, agree in writing not to sell, offer, dispose of or otherwise transfer any such shares or options during such one hundred eighty (180) day period without the prior written consent of the Representative (which consent may be withheld at the sole discretion of the Representative) and (C) shares of restricted Common Stock pursuant to any equity incentive plans or employee benefit plans of the Company; (mq) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; (r) to direct the transfer agent to place stop transfer restrictions upon any such securities of the Company that are bound by “lock up” agreements for the duration of the periods contemplated in such agreements. (s) that during the time in which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations, the Company shall file, on a timely basis, with the Commission and The New York Stock Exchange all reports and documents in the manner required by the Exchange Act, the Exchange Act Regulations and the Sarbanes Oxley Act; additionally the Company shall report the use of proceeds from the issuance of the Shares as may be required under Rule 463 under the Securities Act. (t) until the Company’s Board of Directors determines it not to be in the best interests of the Company and its stockholders, to conduct the Company’s business in such a manner as to ensure that the Company will not be an “investment company” or an entity controlled by an “investment company” within the meaning of the Investment Company Act; (u) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; (v) that the Company will comply with all of the provisions of any undertakings in the Registration Statement; and (nw) that until the provisions Company’s Board of Directors determines it not to be in the engagement letter agreement dated March 5, 1999, between best interests of the Company and Friedmanits stockholders, Billings, Xxxxxx & Co., Inc. shall survive that the execution and delivery of this Agreement and Company will continue to use its best efforts to meet the consummation of requirements to qualify as a REIT under the transactions contemplated herebyCode.

Certain Covenants. The Trust Company and the Company hereby covenant Operating Partnership, jointly and severally, agree with each Underwriter as followsthe Underwriters: (a) to furnish such information as may be required and otherwise to cooperate in each case qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may reasonably designate and to maintain such qualifications in effect so as long as required reasonably requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to file a general consent to the service of process under the laws of any such jurisdiction; (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative, promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on under the day following Securities Act within the execution and delivery of this Agreement time period set forth in Rule 424(b) and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) to advise the Representatives Representative promptly (and (if requested required by the Representatives) Representative, to confirm such advice in writing, ) when the Registration Statement has become effective and when any post-effective amendment thereto becomes become effective under the Securities Act Regulations; (de) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto; (f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (g) to advise the Representatives immediatelyRepresentative immediately and, if requested by the Representative, confirming such advice in writing, of (i1) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus, the Disclosure Package, or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii2) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblepossible and to advise the Representative promptly of the lifting or removal of such order; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative, upon advice of counsel after discussion with the Company and counsel for the Company, shall reasonably object in writing; (eh) unless otherwise publicly available in electronic format on the website of the Company or the Commission to furnish to the Underwriters for a period of five two (2) years from the date of this Agreement (i1) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockPreferred Stock, (ii2) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD Commission or any national securities exchange on which any class of securities of the Company are listed; and (iii3) such other additional information as the Underwriters may from time to time reasonably request regarding (any financial statements so requested to be on a consolidated basis to the Trust, extent the accounts of the Company and/or and its subsidiaries are consolidated in reports furnished to its security holders generally or to the SubsidiariesCommission); (fi) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act or the Securities Act Regulations which, in the judgment of the Trust and the Company, (1) would require the making of any change result in the Prospectus then being used so that or the Prospectus would not include Disclosure Package containing an untrue statement of a material fact or omit omitting to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (2) would result in any Issuer Free Writing Prospectus conflicting with the information contained in the Registration Statement relating to the Shares or the Prospectus, or (3) would make it necessary to amend or supplement the Prospectus or the Disclosure Package to comply with the Securities Act and the Securities Act Regulations and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading, or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement or the Prospectus, or so that the Prospectus or the Disclosure Package will comply with the Securities Act and the Securities Act Regulations; (j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company, be required by the Securities Act or requested by the Commission; (gk) Except with respect to filings by the Company under the Exchange Act, during the period of time a Prospectus is required to be delivered in connection with the sale of Shares hereunder, prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Underwriters and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing; (il) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein); (m) during the period referred to in paragraph (i) above, to furnish to the Representative, not less than two (ii2) copies full business days before filing with the Commission, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.; (hn) to apply the net proceeds of the sale of Shares by the Capital Securities and the Debentures Company in accordance with the statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package; (io) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen (18) months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement); (jp) to use its commercially reasonable best efforts to effect and maintain list the quotation of the Capital Securities Shares on the NASDAQ National Market NYSE and to file with the NASDAQ National Market NYSE all documents and notices required by the NASDAQ National Market NYSE of companies that seek to have securities that are traded in listed on the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNYSE; (kq) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesPreferred Stock; (lr) not to take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares; (s) in connection with the offer and sale of the Shares, not to offer shares of Preferred Stock or any other securities convertible into or exchangeable or exercisable or redeemable for Preferred Stock in a manner in violation of the Securities Act; (t) not to distribute any prospectus or other offering material, other than the Registration Statement, the Prospectus and the Disclosure Package, in connection with the offer and sale of the Shares; (u) to refrain during a period of 60 days from the date of the Prospectus, without the prior written consent of the RepresentativesWachovia Capital Markets, for a period of 180 days after the date of this AgreementLLC, not from, directly or indirectly, (1) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, voluntarily making any public announcement of a disposition or transfer, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Preferred Stock or any securities convertible into or exercisable or exchangeable for Preferred Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing (except for (i) a registration statement on Form S-3 relating to the resale of shares of Common Stock that represent may be issued upon redemption of any of the right 4,705,915 OP Units (the “Contribution Units”) issued to receive NorthStar Partnership, L.P., NS Advisors Holdings LLC and NorthStar Funding Managing Member Holdings LLC in exchange for their contribution of certain assets and related liabilities and rights on October 29, 2004 which the Company is required to file pursuant to the Registration Rights Agreement, (ii) a registration statement on Form S-3 relating to a proposed dividend reinvestment plan or employee stock purchase plan of the Company, (iii) a universal shelf registration statement on Form S-3 and/or Form S-4 relating to securities that may be offered or sold by the Company, provided that the Company will not sell any securities pursuant to such registration statement within 60 days from the date of the Prospectus, and (iv) a registration statement on Form S-8 with respect to grants of stock options, restricted stock, LTIP Units or other stock based awards to employees, consultants or directors of the Company pursuant to an employee benefit plan in existence on the date hereof), or (2) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Preferred Stock, whether any such similar swap or transaction described in clause (1) or (2) above is to be settled by delivery of Preferred Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be issued hereunder, (B) any shares of Preferred Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to directly or indirectly in the Prospectus and the Disclosure Package, (C) grants of stock options, restricted stock or LTIP Units to employees, consultants or directors of the Company pursuant to an employee benefit plan in existence on the date hereof and described in the Prospectus and the Disclosure Package, provided that the grantees thereof agree not to sell, offer, dispose of or otherwise transfer any such stock options (or the shares underlying such options), restricted stock or LTIP Units or Preferred Stock during such 60-day period without the prior written consent of Wachovia Capital Markets, LLC on behalf of the Underwriters, (D) any shares of Preferred Stock issued by the Company upon redemption of any of the Contribution Units or (E) the issuance of Preferred Stock or units of the Operating Partnership in connection with the acquisition of assets in a transaction exempt from the requirements of the Securities Act; (mv) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i1) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii2) sell, bid for, purchase or or, except as provided herein, pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii3) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; (w) that the Company will comply with all of the provisions of any undertakings in the Registration Statement and will file with the Commission such reports as may be required pursuant to Rule 463 of the Securities Act Regulations; (x) that the Company and the Operating Partnership will use their best efforts to enable each of the Company and the Private REIT to meet the requirements to qualify as a REIT under the Code until the respective Board of Directors of the Company or the Private REIT determines that it is no longer in the best interests of the Company or the Private REIT, as the case may be, to qualify as a REIT; (y) that the Company will disclose in each annual report of the Company distributed to investors pursuant to Section 13(a) of the Exchange Act, a per share market value of the Preferred Stock as reported on the NYSE; and (nz) that the provisions The Company will prepare a final term sheet, containing a description of final terms of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement Shares and the consummation of offering thereof, in the transactions contemplated herebyform approved by the Representative and attached as Schedule III hereto, and to file such term sheet as an Issuer Free Writing Prospectus pursuant to Rule 433(d) within the time required by such Rule.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) to furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto; (e) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (f) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing; (eg) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD FINRA or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, Company and the Company and/or the Subsidiariessubsidiaries; (fh) to advise the Underwriters Representative promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law; (i) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission; (gj) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing; (ik) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request; (l) to furnish to the Representative, not less than two business days before filing with the Commission, during the period referred to in paragraph (iii) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during the period of five years hereafter to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.; (hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package; (in) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jo) to use its best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Nasdaq Global Select Market (the “Nasdaq”) and to file with the NASDAQ National Market Nasdaq all documents and notices required by the NASDAQ National Market Nasdaq of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNasdaq; (kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lq) to refrain, from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; (mr) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and; (ns) to cause each director and certain officers of the Company to furnish to the Representative, prior to the execution of this Agreement, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters; (t) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; (u) that the Company will comply with all of the provisions of any undertakings in the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.Registration Statement;

Certain Covenants. The Trust Issuers, jointly and the Company hereby severally, covenant and agree with each Underwriter as followsthe Initial Purchasers that: (a) None of the Issuers will amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to furnish such information the proposed amendment or supplement and as to which the Initial Purchasers or counsel for the Initial Purchasers shall reasonably object. The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements to the Preliminary Memorandum or the Final Memorandum that may be required and otherwise to reasonably necessary or advisable in connection with the resale of the Securities by the Initial Purchasers. (b) The Issuers will cooperate with the Initial Purchasers in qualifying arranging for the Capital qualification of the Securities for offering and sale under the securities or blue sky "Blue Sky" laws of such states jurisdictions as the Representatives Initial Purchasers may designate and to maintain will continue such qualifications in effect so for as long as required for may be necessary to complete the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved Securities by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers; provided, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectushowever, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies that in connection therewith none of the Prospectus (Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of the Prospectus as amended process in any jurisdiction or supplemented if the Trust and the Company shall have made to take any amendments other action that would subject it to general service of process or supplements thereto after the effective date to taxation in respect of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, doing business in any jurisdiction in which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;it is not otherwise subject. (c) If, at any time prior to advise the Representatives promptly and (if requested completion of the distribution by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under Initial Purchasers of the Securities Act Regulations; (d) to advise the Representatives immediatelyor, confirming such advice in writing, of (i) the receipt of any comments from, or any request byif issued, the Commission for amendments Private Exchange Notes, any event occurs or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission becomes known as a result of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) Final Memorandum as soon as available, copies of all annual, quarterly and current reports then amended or other communications supplied to holders of shares of supplemented would include any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, andor if for any other reason it is necessary at any time to amend or supplement the Final Memorandum to comply with applicable law, during the Issuers will promptly notify the Initial Purchasers thereof (who thereafter will not use such time, to prepare Final Memorandum until appropriately amended or supplemented) and promptly furnish to the Underwriterwill prepare, at the Trust's and expense of the Company's expenseIssuers, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed an amendment or supplement before filing any to the Final Memorandum that corrects such amendment statement or supplement with the Commission;omission or effects such compliance. (gd) to furnish the Representatives and counsel for the UnderwritersThe Company will, without charge, (i) signed copies of provide to each Initial Purchaser and to counsel to the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, Initial Purchasers as many copies of any the Preliminary Prospectus Memorandum and the Prospectus and Final Memorandum or any amendments thereof and supplements amendment or supplement thereto as the Representatives Initial Purchasers may reasonably request. (he) During the period of five years from the Closing Date, the Company will furnish to the Initial Purchasers (a) as soon as available, a copy of each report and other communication (financial or otherwise) of the Company mailed to the Trustee or the holders of the Securities, stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company may be listed and (b) from time to time such other information concerning the Company as you may reasonably request. (f) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (other than solely by reason of a default by the Initial Purchasers of their obligations hereunder after all conditions hereunder have been satisfied in accordance herewith) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the part of the Issuers to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Initial Purchasers) incurred by you in connection herewith. (g) The Company will apply the net proceeds of from the sale of the Capital Securities and the Debentures in accordance with the statements as set forth under the caption "Use of Proceeds" in the Prospectus;Final Memorandum. (h) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim consolidated financial statements of the Company for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum. (i) None of the Issuers or any of their respective Affiliates will sell, offer for sale or solicit offers to make generally available buy or otherwise negotiate in respect of any "security" (as defined in the Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Act of the Securities. (j) The Issuers will not, and will not permit any of the Subsidiaries to, solicit any offer to its security holders and buy or offer to sell the Representatives Securities by means of any form of general solicitation or general advertising (as soon as practicable, but those terms are used in Regulation D under the Act) or in any event not later than manner involving a public offering within the end meaning of Section 4(2) of the fiscal quarter first occurring after the first anniversary Act. (k) For so long as any of the effective date Securities remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Act and not able to be sold in their entirety under Rule 144 under the Act (or any successor provision), the Company will make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section 13 or 15(d) of the Registration Statement Exchange Act. (or 90 days if such 12-month period coincides l) The Issuers will use their best efforts to (i) permit the Securities to be included for quotation on the Private Offering, Resales, and Trading through Automated Linkages Market ("PORTAL") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC"). (m) In connection with the Company's fiscal yearSecurities offered and sold in an offshore transaction (as defined in Regulation S), an earnings statement complying the Company will not register any transfer of such Securities not made in accordance with the provisions of Section 11(a) of the Securities Act (Regulation S and will not, except in form, at the option of the Company, complying accordance with the provisions of Rule 158 of the Regulation S, if applicable, issue any such Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent form of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar definitive securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust and 3.1 Without prejudice to the Company generality of Article II, each Guarantor hereby covenant and agree with each Underwriter as followsagrees: (a) to furnish cause Eco Telecom, and any other Controlled Affiliate of such information as may be required and otherwise Guarantor which is a successor to cooperate in qualifying the Capital Securities for offering and sale or permitted assign of all or any part of Eco Telecom's obligations under the securities or blue sky laws VIP Primary Agreement, the VIP Registration Rights Agreement, the VIP Shareholders Agreement and/or the VIP-R Shareholders Agreement, to perform and comply with Eco Telecom's and such other Controlled Affiliate's respective obligations under Section 7.04 of such states the VIP Primary Agreement, Article II (Transfers), Section 5.02 (Non-Compete) and Section 5.03 (Debt Acquisition) of the VIP Registration Rights Agreement, Article III (Transfers) of the VIP Shareholders Agreement and/or Article IV (Transfers of Securities), Section 5.03 (Debt Acquisition) and Section 6.02 (Non-Compete) of the VIP-R Shareholders Agreement, as the Representatives case may designate and to maintain be, provided that this Article III(a) shall not release Eco Telecom or any such qualifications in effect so long as required for the distribution other Controlled Affiliate from any of the Capital Securitiestheir respective obligations thereunder; (b) not to prepare the Prospectus take or permit any of its Controlled Affiliates to take any action which would be prohibited by any such Section or Article if such Guarantor or any such Controlled Affiliate were an original signatory to any such Agreement as a "Purchaser" or "Shareholder", in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except each case to the extent permitted by Regulation S-Tprovided therein; (c) to advise comply with, and cause each of its Controlled Affiliates to comply with, the Representatives promptly and (obligations of Eco Telecom under any such Section or Article as if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, Guarantor or any request bysuch Controlled Affiliate were an original signatory to such Agreement in place of Eco Telecom, the Commission for amendments or supplements in each case to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) extent provided therein; and 3.2 VIP shall use reasonable efforts to notify the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order Limited Guarantor as soon as possible; to advise the Representatives promptly reasonably practicable upon obtaining knowledge of any proposal breach of the covenants set forth in the preceding Section 3.1; provided, that the liability of the Guarantors in connection with any such breach shall not be affected by any failure by VIP to amend or supplement the Registration Statement or Prospectus and to file no provide such amendment or supplement to which the Representatives shall reasonably object in writing;notice. (e) to furnish to the Underwriters for 3.3 Upon receipt by each Beneficiary of a period of five years duly executed Endorsement from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the CommissionTransferee, the NASD or General Guarantor shall be automatically released from any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered liability under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows: (a) The Purchaser agrees to furnish such information as may be required and otherwise to cooperate vote all shares of Fund Common Stock beneficially owned by the Purchaser in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution favor of the Capital Securities;Proposal at the Special Meeting. (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect The Purchaser agrees that prior to the initial delivery of such Prospectus, Closing it will not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (directly or of the Prospectus as amended indirectly seek or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of propose (i) the receipt of any comments fromto initiate, or join any request byperson in initiating, any action to influence or control the Commission for amendments Fund's management or supplements to policies (provided that this covenant shall not restrict the Registration Statement or Prospectus or for additional information with respect theretoPurchaser from voting its shares of Fund Common Stock as it sees fit, except as otherwise provided in Sections 7(a) and 7(b)(ii)), or (ii) to take any action or support any action by any other person that is in opposition to the issuance by the Commission of any stop order suspending the effectiveness Proposal or to shareholder approval of the Registration Statement or of Proposal. (c) The Purchaser agrees that it will not take any order preventing or suspending action intentionally to depress the use of any Preliminary Prospectus or the Prospectus, or trading price of the suspension Fund Common Stock. (d) The Sellers and the Purchaser agree to use all commercially reasonable efforts to obtain as promptly as possible all regulatory approvals required for them to consummate the Transaction as provided herein, including, without limitation, approvals under the HSR Act. The Sellers will not intentionally take or omit to take any action to delay the Aberdeen Closing beyond December 2000. The Sellers will give the Purchaser reasonable advance notice, to the extent practicable, of the qualification date of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing;Aberdeen Closing. (e) The Sellers agree to furnish to notify the Underwriters for a period of five years from the date of this Agreement Purchaser promptly if (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockthey learn that the Aberdeen Closing will occur after December 2000, (ii) as soon as practicable after the filing thereofAberdeen Agreement is terminated, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as they learn of any event that would result in a failure of the Underwriters may reasonably request regarding conditions set forth in Section 6 to be satisfied or that would constitute a breach of their representations, warranties or covenants hereunder. The Purchaser agrees to notify the TrustSellers promptly if it learns of any event that would result in a failure of the conditions set forth in Section 6 to be satisfied or that would constitute a breach of its representations, the Company and/or the Subsidiaries;warranties or covenants hereunder. (f) to advise The Purchaser acknowledges that the Underwriters promptly Sellers are affiliates of the happening of any event known to the Trust and/or the Company Fund, within the time during which a Prospectus relating to meaning of Rule 405 under the Capital Securities is required to be delivered Act. The Purchaser agrees that it will not sell the Shares otherwise than in compliance with Rule 144 under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement1933, as initially filed with amended (the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein"Securities Act"), (ii) copies of any document incorporated by reference or otherwise in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by transaction that does not require registration under the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestAct. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust Company covenants and agrees with the Company hereby covenant and agree with each Underwriter as followsInitial Purchasers that: (a) The Company will not amend or supplement the Final Circular or any amendment or supplement thereto of which the Initial Purchasers shall not have been advised and furnished a copy for a reasonable period of time prior to furnish such information the proposed amendment or supplement and as to which the Initial Purchaser shall not have given their consent (which consent shall not be unreasonably withheld). The Company will promptly, upon the reasonable request of the Initial Purchasers, make any amendments or supplements to the Preliminary Circular or the Final Circular that may be required and otherwise to necessary in connection with the resale of the Notes by the Initial Purchasers. (b) The Company will cooperate with the Initial Purchasers in qualifying arranging for the Capital Securities qualification of the Notes for offering and sale under the securities or blue sky “Blue Sky” laws of such states jurisdictions as the Representatives Initial Purchasers may designate and to maintain will continue such qualifications in effect so for as long as required for may be necessary to complete the distribution resale of the Capital Securities; (b) to prepare the Prospectus in a form approved Notes by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers; provided, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectushowever, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and that in connection therewith the Company shall have made not be required to qualify as a foreign corporation or to execute a general consent to service of process in any amendments jurisdiction or supplements thereto after the effective date to take any other action that would subject it to general service of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, process or to taxation in excess of a nominal amount in respect of doing business in any jurisdiction in which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;it is not otherwise subject. (c) If, at any time prior to advise the Representatives promptly and (if requested completion of the resale by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness Initial Purchasers of the Registration Statement or Notes, any event shall occur as a result of any order preventing or suspending which it is necessary, in the use opinion of any Preliminary Prospectus or counsel for the ProspectusInitial Purchasers, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Final Circular in order to make such Final Circular not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or Prospectus and if for any other reason it shall be necessary to file no such amendment amend or supplement the Final Circular in order to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecomply with applicable laws, copies of all annual, quarterly and current reports rules or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trustregulations, the Company and/or the Subsidiaries; shall (fsubject to Section 5(i)) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichforthwith amend or supplement such Final Circular at its own expense so that, in the judgment of the Trust and the Companyas so amended or supplemented, would require the making of any change in the Prospectus then being used so that the Prospectus would such Final Circular will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingmisleading and will comply with all applicable laws, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments rules or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestregulations. (hd) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicableThe Company agrees that, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the RepresentativesInitial Purchasers, for a it will not, during the period of 180 ending ninety (90) days after the date of this Agreementthe Final Circular, not to offer, issuepledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, directly or indirectly, any shares of its common stock (other than the issuance of Common Stock upon conversion of the Notes or the exercise of any additional securities of the Trust or the Company substantially similar to the Capital Securities outstanding options) or any securities convertible into or exercisable or exchangeable for its common stock (other than pursuant to employee stock option, stock purchase and 401(k) plans and other than upon the conversion or that represent exchange of outstanding convertible or exchangeable securities outstanding as of the right date of the Final Circular). (e) The Company will, without charge, provide to receive the Initial Purchasers and to counsel for the Initial Purchasers as many copies of each Preliminary Circular or Final Circular or any amendment or supplement thereto as the Initial Purchasers may reasonably request. (f) The Company will not and will use its commercially reasonable best efforts to cause any of its Affiliates not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) which could be integrated with the sale of the Notes in a manner which would require the registration under the Securities Act of the Notes. (g) For so long as any of the Notes remain outstanding, the Company will furnish to the Initial Purchasers (a) as soon as available, a copy of each report or other communication (financial or otherwise) of the Company mailed to the Trustee or holders of the Notes or stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company may be listed (except to the extent such similar securities;communication is publicly available), and (b) from time to time such other information concerning the Company as the Initial Purchasers may reasonably request to the extent such provision of information would not be prohibited by any applicable laws, including but not limited to Regulation FD. (h) The Company will apply the net proceeds from the sale of the Notes as set forth under “Use of Proceeds” in the Final Circular. (i) Prior to the Closing Date and again prior to the Additional Closing Date, if any, upon request by the Initial Purchasers, the Company will furnish to the Initial Purchasers, as soon as they have been prepared by or are available to the Company, a copy of any unaudited interim consolidated financial statements of the Company and the Subsidiaries, for any period subsequent to the period covered by the most recent financial statements appearing in the Final Circular. (j) The Company will not, and will not permit any of the Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Notes or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. (k) For so long as any of the Notes remain outstanding, the Company will make available at its expense, upon request, to any holder and beneficial owner of Notes and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act. (l) The Company will use its commercially reasonable best efforts to (i) permit the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. (the “NASD”) relating to trading in the Private Offerings, Resales and Trading through Automated Linkages market (the “Portal Market”) and (ii) permit the Notes to be eligible for clearance and settlement through The Depository Trust Company. (m) to use its best efforts to cause its officersIn connection with Notes offered and sold in an offshore transaction (as defined in Regulation S), directors the Company will not register any transfer of such Notes not made in accordance with the provisions of Regulation S and affiliates not to (i) takewill not, directly or indirectly prior to termination except in accordance with the provisions of the underwriting syndicate contemplated by this AgreementRegulation S, if applicable, issue any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might such Notes in the future reasonably be expected to cause or result in, the stabilization or manipulation form of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; anddefinitive securities. (n) The Company will not become, at any time prior to the expiration of three years after the Closing Date or the Additional Closing Date, if any, an open-end investment company, unit investment trust, closed-end investment company or face-amount certificate company that the provisions is or is required to be registered under Section 8 of the engagement letter agreement dated March 5Investment Company Act. (o) During the period of two years after the Closing Date, 1999, between the Company will not, and Friedmanwill cause its “affiliates” (as defined in Rule 144 under the Securities Act) not to purchase or agree to purchase or otherwise acquire and then resell any of the Notes which constitute “restricted securities” under Rule 144(a)(3) under the Securities Act, Billings, Xxxxxx & Co., Inc. shall survive the execution whether as beneficial owner or otherwise. The Company will use its commercially reasonable best efforts to do and delivery of perform all things required to be done and performed by it under this Agreement and the consummation other Transaction Documents prior to or after the Closing Date or the Additional Closing Date, if any, and to satisfy all conditions precedent on its part to the obligations of the transactions contemplated herebyInitial Purchaser to purchase and accept delivery of the Notes and to list the Underlying Securities on the Nasdaq National Market (the “Nasdaq”).

Certain Covenants. The Trust Company and the Company hereby covenant Guarantors, jointly and severally, agree with each Underwriter as followsthe Initial Purchasers: (a) to furnish such information to the Initial Purchasers promptly, without charge, during the period referred to in paragraph (c) below, as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution many copies of the Capital SecuritiesOffering Circular and any amendments and supplements thereto as it may reasonably request; (b) that, during such period after the date hereof and prior to prepare the Prospectus in a form approved completion of the distribution of the Securities by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Final Circular (including by means of any filings with the Commission made pursuant to the Exchange Act or Prospectus the Exchange Act Regulations) and to file no will not effect such amendment or supplement without the consent of the Representatives, not to be unreasonably withheld, except that nothing contained in this Section 5(b) shall prohibit the Company from filing with the Commission any report or schedule which the Representatives Company, on the advice of outside counsel, believes is required to be filed in order to comply with applicable law. Neither the consent of the Representatives, nor the Representatives’ delivery of any such amendment or supplement, shall reasonably object constitute a waiver of any of the conditions set forth in writing; (e) to furnish Section 7 hereof. If at any time prior to the Underwriters for completion of the distribution of the Securities by the Initial Purchasers, the Company has issued or shall have issued any written communication, which would be deemed a period “free writing prospectus” as defined in Rule 405 under the Securities Act if the placement of five years from the date of Securities contemplated by this Agreement were conducted as a public offering made pursuant to a registration statement filed with the Commission under the Securities Act (a “Supplemental Offering Document”), and there occurred or occurs an event or development as a result of which such Supplemental Offering Document conflicted or would conflict with the information contained in the Disclosure Package or the Final Circular or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will (i) as soon as available, copies notify the Representatives of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, the same; (ii) subject to the requirements of this paragraph (b) of this Section 5, will prepare at its own expense and provide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, an amendment or supplement that will correct such statement or omission; and (iii) will supply any supplemented or amended Supplemental Offering Document to the Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as soon as practicable after may be reasonably requested. Clause (i) of the filing thereoffirst Section of this paragraph (b) does not apply to statements in or omission from any document in the Disclosure Package, copies of all reports filed by any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to the Company or the Trust with Guarantors by or on behalf of the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesInitial Purchasers specifically for use therein; (fc) that, if at any time prior to advise the Underwriters promptly completion of the happening sale of the Securities by the Initial Purchasers, any event known to occurs as a result of which the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichFinal Circular, in the judgment of the Trust and the Companyas then amended or supplemented, would require the making of include any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, andor if it should be necessary to amend or supplement the Final Circular to comply with applicable law, during such time, to prepare and the Company will promptly furnish (i) notify the Representatives of the same; (ii) subject to the Underwriterrequirements of paragraph (b) of this Section 5 will prepare at its own expense and provide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, at an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Final Circular to the Trust's Initial Purchasers and counsel for the Company's expense, Initial Purchasers without charge in such amendments or supplements to such Prospectus quantities as may be necessary reasonably requested. Clause (i) of the first Section of this paragraph (c) does not apply to reflect statements in or omission from any document in the Disclosure Package, any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to the Company or the Guarantors by or on behalf of the Initial Purchasers specifically for use therein; (d) to cooperate with the Representatives for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representatives reasonably may designate and will maintain such qualifications in effect as long as reasonably requested by the Representatives for the sale of the Securities by the Initial Purchasers; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such change jurisdiction where it is not then so subject. The Company will promptly advise the Representatives of the receipt by the Company of any written notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (e) to use commercially reasonable efforts to do and perform all things reasonably required to be done and performed by it under this Agreement and the Transaction Documents prior to or after the Closing Date and to furnish satisfy all conditions precedent on their part to the Underwriters a copy obligations of such proposed amendment the Initial Purchasers to purchase and accept delivery of the Securities; (f) that none of the Company, the Guarantors or supplement before filing any such amendment of their respective Affiliates, nor any person acting on its or supplement with their behalf (other than the CommissionInitial Purchasers or any of their respective Affiliates, as to whom the Company and the Guarantors express no representations or agreements) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities under the Securities Act; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies that none of the Registration StatementCompany, the Guarantors or any of their respective Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as initially filed to whom the Company and the Guarantors express no opinion) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Commission, and of all amendments or supplements thereto Securities; (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iiih) so long as delivery any of a prospectus by an Underwriter or dealer may be required by the Securities Act or are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act RegulationsAct, at any time that the Company is not then subject to Section 13 or 15(d) of the Exchange Act, to provide at the Company’s expense to each holder of the Securities and to each prospective purchaser (as many copies designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any Preliminary Prospectus and information required to be provided by Rule 144A(d)(4) under the Prospectus and any amendments thereof and supplements thereto as Securities Act; (i) to cooperate with the Representatives may reasonably request.and use their commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC; (hj) to apply the net proceeds of from the sale of the Capital Securities and by the Debentures Company in accordance with the statements under the caption "“Use of Proceeds" ” in the Prospectus; (i) to make generally available to its security holders Disclosure Package and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketFinal Circular; (k) not to engage take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company and maintain, at its expense, a registrar and transfer agent for the Capital Guarantors to facilitate the sale or resale of the Securities; (l) in connection with the offer and sale of the Securities, not to offer Securities or any other securities convertible into or exchangeable or exercisable or redeemable for the Securities in a manner in violation of the Securities Act; (m) not to distribute any prospectus or other offering material, other than the Disclosure Package and the Final Circular, in connection with the offer and sale of the Securities; (n) to refrain during a period of 60 days from the date of the Offering Circular, without the prior written consent of Citigroup Global Markets Inc., from, directly or indirectly, (1) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the Representativessale of, voluntarily making any public announcement of a disposition or transfer, or otherwise disposing of or transferring (or entering into any transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), any Securities, or any securities convertible into or exercisable or exchangeable for the Securities or filing any registration statement under the Securities Act with respect to any of the foregoing (except for (i) a period registration statement on Form S-3 relating to a proposed dividend reinvestment plan or employee stock purchase plan of 180 NRF, (ii) a registration statement on Form S-3 relating to the shares of Common Stock issuable upon exchange of exchangeable notes issued by the Operating Partnership or any other subsidiary, including the Securities; (iii) a universal shelf registration statement on Form S-3 and/or Form S-4 relating to securities that may be offered or sold by NRF, provided that NRF will not sell any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock pursuant to such registration statement within 60 days after from the date of the Final Circular, and (iii) a registration statement on Form S-8 with respect to grants of stock options, restricted stock, LTIP Units or other stock based awards to employees, consultants or directors of NRF pursuant to an employee benefit plan in existence on the date hereof), or (2) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Securities whether any such swap or transaction described in clause (1) or (2) above is to be settled by delivery of Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be issued hereunder, (B) the issuance of Common Stock by NRF upon exchange or repurchase of the Securities under this Agreement, (C) securities issued in connection with employee benefit plans, stock option plans, long-term incentive plan, direct stock purchase plans and/or distribution reinvestment plans existing at the date of this Agreement, (D) any securities issued by NRF upon the exercise of an option, warrants or rights outstanding on the date hereof and referred to directly or indirectly in the Disclosure Package and the Final Circular, (E) grants of stock options, restricted stock or LTIP Units to employees, consultants or directors of NRF or its Subsidiaries pursuant to an employee benefit plan of NRF in existence on the date hereof and described in the Disclosure Package and the Final Circular, provided that the grantees thereof agree not to sell, offer, issue, sell, contract to sell dispose of or otherwise dispose transfer any such stock options (or the shares underlying such options), restricted stock or LTIP Units or Securities during such 60-day period without the prior written consent of Citigroup Global Markets Inc. on behalf of the Initial Purchasers, (F) any Common Stock issued by NRF upon redemption of any additional securities of the Trust OP Units, (G) the issuance of Common Stock or units of the Company in connection with the acquisition of assets in a transaction exempt from the requirements of the Securities Act or (H) the issuance of Common Stock by NRF upon exchange of the 7.25% Exchangeable Notes, the 7.50% Exchangeable Notes or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities11.50% Exchangeable Notes; (mo) not to, and to use its commercially reasonable best efforts to cause its officers, directors and affiliates not to to, (i1) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the CompanyCompany or NRF, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the CompanyCompany or NRF, to facilitate the sale or resale of any of the Capital Securities, (ii2) sell, bid for, purchase or or, except as provided herein, pay anyone any compensation for soliciting purchases of the Capital Securities or (iii3) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company or NRF; (p) that NRF will use its best efforts to enable each of NRF and the Private REIT to meet the requirements to qualify as a REIT under the Code until the respective Boards of Directors of NRF or the Private REIT determines that it is no longer in the best interests of NRF or the Private REIT, as the case may be, to qualify as a REIT; (q) that the transfer restrictions and the other provisions set forth in the Disclosure Package and the Final Circular under the caption “Notice to Investors,” including the legend required thereby, shall apply to the Securities except as otherwise agreed by the Company, the Guarantors and the Representatives; (r) that NRF will use its commercially reasonable best efforts to list all Underlying Shares issuable upon exchange of the Securities on the NYSE, subject to notice of issuance, for as long as any share of Common Stock is listed on the NYSE; (s) that NRF will reserve and keep available at all times, free of preemptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue Common Stock upon exchange of the Securities; and (nt) that the provisions NRF will not, and will not permit any of the engagement letter agreement dated March 5its Affiliates to, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery resell any Securities that have been acquired by any of this Agreement and the consummation of the transactions contemplated herebythem.

Certain Covenants. (I) The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares); (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto; (f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (g) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and and, except as may be required by law, to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (eh) to furnish to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, and (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesexchange; (fi) to advise the Underwriters promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law; (j) to file promptly with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission; (gk) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Representatives and counsel for the UnderwritersUnderwriters and obtain the consent of the Representatives to the filing, without charge, which consent will not be unreasonably withheld; (il) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.; (hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package; (in) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jo) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lq) to refrain, from the date hereof until 90 days after the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing (other than a registration statement on Form S-8), or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus or (C) the issuance of any shares of Common Stock, or an agreement entered into to issue shares of Common Stock, in connection with an acquisition of stock or assets of another business, by merger or otherwise, provided that such shares in the aggregate do not exceed, in the aggregate, during the 90 days after the date of the Prospectus, 10% of the number of shares of Common Stock outstanding immediately following the sale of all Shares hereunder and provided further that the Company shall have received from each recipient of such shares (to the extent such shares have been or will be issued on or prior to the date that is 90 days following the date of the Prospectus) a lock-up letter in substantially the form of Exhibit B below; (mr) not to, and to use its reasonable best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and; (ns) that the provisions to cause each officer and director of the engagement Company to furnish to the Representatives, prior to the Initial Sale Time, a letter agreement dated March 5or letters, 1999substantially in the form of Exhibit B hereto, between the Company and except as otherwise approved by Friedman, Billings, Xxxxxx & Co., Inc. Inc.; (t) if, at any time during the 90-day period after the date of the Prospectus, any rumor, publication or event relating to or affecting the Company shall survive occur as a result of which, in the execution reasonable opinion of the Representatives, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and delivery after written notice from the Representatives advising the Company to the effect set forth above, to forthwith consult with the Representatives concerning the substance of, and consult with the Representatives regarding the dissemination of a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event; (u) that the Company will comply with all of the provisions of any undertakings in the Registration Statement. (II) Each Selling Stockholder, severally and not jointly, hereby agrees with each Underwriter: (a) to deliver to the Representatives prior to the Closing Time a properly completed and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United States person, within the meaning of the Code) or Form W-9 (if the Selling Stockholder is a United States person, within the meaning of the Code); (b) to furnish to the Representatives, prior to the Initial Sale Time, a letter or letters, substantially in the form of Exhibit B hereto; (c) if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus and the Disclosure Package has been completed, as determined by the Representatives, such Selling Stockholder has knowledge or becomes aware of the occurrence of any event as a result of which the Registration Statement, as then amended, would include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or the Prospectus or the Disclosure Package, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, such Selling Stockholder will promptly notify the Company and the Representatives; (d) to deliver to the Company or the Underwriters such documentation as the Company or the Underwriters or any of their respective counsel may reasonably request in order to effectuate any of the provisions of this Agreement Agreement; and (e) to not prepare or have prepared on its behalf or use or refer to any Free Writing Prospectus and to not distribute any written materials in connection with the consummation offer or sale of the transactions contemplated herebyShares.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representatives promptly and, if requested by the Representatives, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this AgreementAgreement or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (de) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (ef) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries; (fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law; (h) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission; (gi) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representatives to the filing; (ij) to furnish promptly to each Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives may reasonably request.; (hk) to furnish to each the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (f) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Exchange Act Regulations; (l) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus; (im) to make generally available to its security holders and to deliver to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jn) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by by, the NASDAQ National Market; (ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lp) to refrain during a period of 270 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; (mq) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and; (nr) that the provisions to cause each 1% or greater stockholder, officer and director of the engagement Company to furnish to the Representatives, prior to the first Date of Delivery, a letter agreement dated March 5or letters, 1999substantially in the form of Exhibit A hereto, between pursuant to which each such person shall agree not to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the Company and disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of Friedman, Billings, Xxxxxx & Co., Inc. on behalf of the Underwriters; (s) that the provisions of the letter agreement dated December 20, 2001 between the Company and the Representatives (the "Engagement Letter") shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein; (t) that the Company shall (i) obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $xx million which shall apply to the offering contemplated herein and (ii) cause the Representatives to be added to such policy such that up to $xxx,xxx of its expenses pursuant to Section 9(a) shall be paid directly by such insurer and (iii) shall cause the Representatives to be added as an additional insured to such policy in respect of the offering contemplated herein; (u) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representatives, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representatives advising the Company to the effect set forth above, to forthwith prepare, consult with the Representatives concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representatives, responding to or commenting on such rumor, publication or event; (v) that the Company will comply with all of the provisions of any undertakings in the Registration Statement; and (w) that, during the period when the Prospectus is required to be delivered under the Securities Act or the Exchange Act, the Company will file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Commission thereunder.

Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows: (a) The Issuer agrees that any Person, designated in writing by a Noteholder may, upon reasonable prior written notice, consult with proper officials of the Issuer and (subject to furnish such information as may be required and otherwise to cooperate in qualifying consent by the Capital Securities for offering and sale Servicer under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Servicing Agreement) to the Underwriters Servicer at such times during normal business hours and as many copies of the Prospectus (or of the Prospectus often as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters Person may reasonably request regarding the Trust, information required to be furnished pursuant to the Company and/or Servicing Agreement or regarding the Subsidiaries;performance of the Issuer’s covenants and agreements contained in this Indenture or any of the Transaction Documents to which it is a party. (fb) to advise the Underwriters promptly The Issuer will comply in all material respects with all requirements of the happening of any event known law applicable to the Trust and/or the Company within the time during which a Prospectus Issuer relating to the Capital Securities is required to be delivered performance of its obligations under the Securities Act Regulations which, in the judgment of the Trust this Indenture and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;Notes. (gc) The Issuer agrees to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed Noteholders copies of each of the Registration Statement, as initially filed with Transaction Documents and any documents to be furnished pursuant to the Commission, terms of the Transaction Documents and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in such other information and documents relating to the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus Notes and the Prospectus and Collateral any amendments thereof and supplements thereto as the Representatives Noteholder may reasonably request. (hd) The Issuer will pay or cause to apply be paid all present and future recording and filing fees, and all legal, financial and miscellaneous out-of-pocket expenses and costs incurred by the net proceeds of the sale of the Capital Securities and the Debentures Issuer in accordance connection with the statements under the caption "Use negotiation of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyby this Indenture and the issuance and sale of the Notes. The Issuer further agrees that it will pay or cause to be paid, promptly upon demand, any reasonable out of pocket expense incurred by the Noteholders in connection with the making of amendment to, or the giving of any release, consent or waiver in respect of, this Indenture and any document executed pursuant hereto or thereto, whether or not consummated, including the reasonable fees and disbursements of counsel for the Noteholders in connection therewith. The obligations of the Issuer under the preceding sentences shall be subject to the priority of distributions set forth in Section 13.1 hereof and shall survive the termination of this Indenture, the transfer of any Note or portion thereof or interest therein by a Noteholder and the payment of any Note. (e) The Issuer will add to Schedule 1 to the Second Amended and Restated Standard Definitions, included herein as Appendix A, a description of and required information pertaining to: (i) each separate and identifiable Asset in which it has ownership rights but which was not listed thereon at a Closing Date (whether or not it was in existence on a Closing Date) promptly after the jurisdiction in which it generates income for the Issuer becomes a Material Jurisdiction and (ii) without duplication, each separate and identifiable Asset not listed on such Schedule 1 at a Closing Date promptly after the same is conveyed to the Issuer pursuant to Section 2.2(b) of the Contribution Agreement or Section 2.2(b) of the Xxx Xxxxx Contribution Agreement. (f) The Issuer will promptly following the conveyance of an Asset to the Issuer (or Release of an Asset) or upon the loss, sale or defeasance of an Asset from the Issuer, update the schedules and exhibits attached to the Transaction Documents, with copies to the Servicer, Trustee and Noteholders. (g) The Issuer will comply with, and obey the terms and provisions of, its Organizational Documents and will not take any action which it is prohibited from taking under its Organizational Documents. (h) The Issuer will maintain, or be a subject insured party under, insurance of the type that is customarily maintained by business entities of the same type and scale as the Issuer. (i) For so long as any of the Notes remain Outstanding, the Issuer will not (x) merge or consolidate with or into any other entity or engage in any other business combination with any other entity or (y) sell or transfer all or substantially all of its assets other than in conformity with the Transaction Documents. (j) The Issuer shall seek to enter into Licenses in the future that permit the Obligors thereunder to be audited with respect to performance under such Licenses. (k) The Issuer shall notify the Noteholders of any litigation in which the Issuer is a party, promptly upon the Issuer’s receipt of notice of the filing of such litigation, in writing by delivery by a reputable courier service or by registered mail (return receipt requested), all charges prepaid.

Certain Covenants. The Trust and Article VI of the Company Purchase Agreement (Certain Covenants) is hereby covenant and agree with each Underwriter amended as follows: (ai) Section 6.05(e) of the Purchase Agreement (Commercially Reasonable Efforts; Regulatory Approvals; Access) is hereby amended and restated in its entirety as follows: “Seller shall give Buyer and its accountants, legal counsel and other representatives reasonable access, during normal business hours and without undue interruption of the Business throughout the period prior to furnish the Closing or, in the case of the Deferred Business, the applicable Deferred Closing (as applicable), to all of the properties, books and records (other than records relating to Income Taxes and attorney-client privileged communications and, for the avoidance of doubt, other than where access to such information is prohibited by applicable Law) relating to the Business, and will furnish, at Buyer’s expense, Buyer, its accountants, legal counsel and other representatives during such period all such information (other than records relating to Income Taxes and attorney-client privileged communications and, for the avoidance of doubt, other than where access to such information is prohibited by applicable Law) concerning the affairs of the Business as Buyer may reasonably request; provided that this Section 6.05(e) shall not entitle Buyer or its accountants, legal counsel or other representatives to contact any third party doing business with Seller or access the properties, books or records of any such third party, in each case without Seller’s prior written consent (which consent shall not be unreasonably withheld). Buyer will hold in confidence all information so obtained in accordance with Section 7.12. Nothing in this Agreement shall limit any of the parties’ rights of discovery.” (ii) Section 6.07 of the Purchase Agreement (Transferred Companies Assets and Liabilities) is hereby amended and restated in its entirety as follows: “Prior to the Closing, Seller shall take or cause to be taken, such action as is necessary or appropriate to transfer, assign or convey (i) any assets owned or held by the Transferred Companies other than those that would constitute Transferred Assets or (ii) any liabilities or obligations of the Transferred Companies other than those that would constitute Assumed Liabilities, in each case, to Seller or an Affiliate of Seller such that as of the Closing, (x) the assets owned or held by the Transferred Companies consist solely of assets that would otherwise constitute Transferred Assets pursuant to clauses (i)–(xvi) and (xviii) of Annex 2.02(a) and (y) the liabilities and obligations of the Transferred Companies consist solely of liabilities and obligations that would otherwise constitute Assumed Liabilities pursuant to clauses (i)–(x) of Annex 2.02(c). Prior to or following the Closing, Buyer shall provide to Seller the necessary information and deliver such assignments, transfers, consents and other documents and instruments as may be reasonably required to permit Seller at its expense to effect and otherwise perfect the transfer of any registrations of Patents and Trademarks that constitute Excluded Assets but which are held by a Transferred Company. Notwithstanding anything in this Agreement to cooperate the contrary (but without limiting Seller’s and Buyer’s obligations after the Closing under Article VII and Article X in qualifying the Capital Securities for offering respect of Pre-Closing Accounts Receivable and sale under the securities Pre-Closing Accounts Payable), Seller and its Affiliates shall not be required to transfer, assign or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution convey any Pre-Closing Accounts Receivable that are owned or held by any of the Capital Securities; Transferred Companies or any Pre-Closing Accounts Payable that are liabilities or obligations of any of the Transferred Companies at or prior to the Closing (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day it being understood that following the execution Closing any Pre-Closing Accounts Receivable (including any cash received in respect thereof) shall in any event be treated as Excluded Assets and delivery any Pre-Closing Accounts Payable shall in any event be treated as Excluded Liabilities). Seller shall deliver or cause to be delivered to Buyer a schedule setting forth Pre-Closing Accounts Receivable and Pre-Closing Accounts Payable within thirty (30) days of the Closing Date. Notwithstanding anything in this Agreement to the contrary, certain equipment that would constitute Excluded Assets may continue to be owned following the Closing by Xxxxxxx-Gammatron Limited and Covidien Manufacturing Solutions, S.A., and such equipment shall be subject to furnish promptly (the provisions of the Master Manufacturing and Supply Agreement, including with respect to the initial delivery transfer thereof to Seller or its applicable Affiliate as provided therein.” (iii) The reference to “Innerdyne Holdings, Inc.” in Section 6.09(c) of such Prospectusthe Purchase Agreement (Closing Structure) is hereby replaced with a reference to “InnerDyne Holdings, not later than 10:00 a.m. Inc.” (New York City timeiv) on Section 6.11(a) of the day following Purchase Agreement (Certain Swiss Tax Matters) is hereby amended and restated in its entirety as follows: “Subject to Section 6.11(b), Seller shall use its reasonable best efforts to minimize the execution and delivery of this Agreement) Swiss Tax Rate. To the extent Seller receives, prior to the Underwriters as many copies of Closing, a Swiss Tax Ruling, the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company Purchase Price shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated be reduced by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished an amount equal to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXXSwiss Sale Amount, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of less (i) the receipt sum of any comments from(A) the Estimated Swiss Gain and (B) (x) the Estimated Swiss Gain multiplied by the Swiss Tax Rate, or any request byfurther multiplied by (y) the Swiss Gross-Up, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or less (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestEstimated Swiss Tax Basis. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.”

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation; (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible; (c) to prepare the Prospectus in a form reasonably approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement, or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to advise the Representatives promptly and (and, if requested by the Representatives) , to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations; (de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule IIA; (f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (g) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to advise the Representatives immediately, and, if requested by the Representatives, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or cease-and-desist order in connection with the public offering of the Shares or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; and to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writingwriting (unless required to do so by law); (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (fh) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act or the Securities Act Regulations which(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) that, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, or (iii) if it is necessary to amend or supplement the Prospectus to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and furnish promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading, or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the Securities Act and the Securities Act Regulations; (i) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission; (gj) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, the Preliminary Prospectus or any Issuer Free Writing Prospectus relating to the Shares, to furnish for review a copy thereof to the Representatives and counsel for the UnderwritersUnderwriters and not to file any such proposed amendment or supplement to which the Representatives reasonably object (unless required to do so by law); (k) to furnish promptly to the Representatives, without chargeupon request, (i) signed such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto relating to the Shares (including all exhibits filed therewith or incorporated by reference therein)) as the Representatives may reasonably request; (l) to furnish to the Representatives, (ii) copies not less than one business day before filing with the Commission subsequent to the date of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of during the period in which a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), as many copies a copy of any Preliminary Prospectus document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act Regulations; (hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Disclosure Package and the Prospectus; (in) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or later than 90 days days, if such 12-month period coincides with fiscal quarter is the last fiscal quarter of the Company's ’s fiscal year), ) an earnings statement complying with satisfying the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (jo) to use its best commercially reasonable efforts to effect and maintain list the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange; (kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lq) to refrain during a period of 60 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or reasonably could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including units of limited partnership interest in Caplease, LP) or such securities, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of Common Stock or such other securities, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that the Company may (A) issue securities pursuant to the Company’s 2004 Stock Incentive Plan, as it may be amended and restated from time to time, (B) file or amend a registration statement on Form S-8 relating to the Company’s 2004 Stock Incentive Plan, as it may be amended and restated from time to time, (C) issue shares of Common Stock pursuant to the Company’s existing dividend reinvestment and stock purchase plan, (D) issue units of limited partnership interest in Caplease, LP as consideration for the acquisition of real estate properties by the Company, or (E) issue shares of Common Stock upon conversion of any currently outstanding units of limited partnership interest in Caplease, LP; (mr) not to, and to use its best efforts to cause its officersofficers and directors not to, directors and affiliates not to (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; (s) to use its best efforts to meet the requirements to qualify as a REIT under the Code, unless it is determined by the Company’s board of directors to be in the best interest of the Company for the Company to no longer so qualify; and (nt) that to use its best efforts not to invest, or otherwise use the provisions proceeds received by the Company from its sale of the engagement letter agreement dated March 5, 1999, between Shares in such a manner as would require the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive or any of its Subsidiaries to register as an investment company under the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyInvestment Company Act.

Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows: (a) Executive acknowledges, agrees and covenants that she will remain subject to furnish such information as may be required the provisions set forth in Section 9 of the Executive Employment Agreement in accordance with its terms and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of periods specified therein following the Capital Securities;Transition Date. (b) Executive acknowledges, agrees and covenants that she will remain subject to prepare all provisions set forth in Section 6 of the Prospectus Executive Employment Agreement; provided, however, that the duration of each such covenant is hereby modified and extended to encompass the maximum period of time permitted by law. (c) The Parties acknowledge, agree and covenant that they will remain subject to Section 20 of the Executive Employment Agreement; provided, however, that the Company’s obligations therein to compensate Executive on an hourly basis for requested litigation and regulatory cooperation will arise only if the Engagement has ended; provided further, that the Company’s obligations therein to reimburse Executive for reasonable attorneys’ fees and costs will not arise if such fees and costs are incurred in a form approved by any proceeding or threatened proceeding adverse to the Underwriters Company or any of its affiliates or subsidiaries. (d) Executive acknowledges, agrees and file such Prospectus with covenants that she remains subject to Section 6(e) of the Commission pursuant Executive Employment Agreement, provided that the obligations of Executive thereunder shall apply at the end of the Engagement. (e) Executive acknowledges and agrees that all remedial rights of the Company set forth in the Executive Employment Agreement, included but not limited to Rule 424(bSections 6(d) not later than 10:00 a.m. (New York City time)and 9(f) thereof, on will remain in full force and effect during and after the day following the execution and delivery Engagement. Should any provision of this Agreement be adjudged to any extent invalid by any court or tribunal of competent jurisdiction, each provision will be deemed modified to the minimum extent necessary to render it enforceable. (f) Executive acknowledges, agrees and covenants that she will remain subject to furnish promptly (and Section 6(e) of the Executive Employment Agreement with respect to the initial delivery return of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;corporate property. (g) to furnish the Representatives Executive covenants and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies agrees that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) takeshe will not, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreementindirectly, incur any action designed to stabilize obligation or manipulate the price of the Capital Securities or any security of the Companycommitment, or enter into any contract, agreement or understanding, whether express or implied, and whether written or oral, which may cause would be in conflict with her obligations, covenants or result in, agreements hereunder or which might in the future reasonably be expected to could cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase her representations or pay anyone any compensation for soliciting purchases of the Capital Securities warranties made herein to be untrue or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyinaccurate.

Certain Covenants. The Trust Company and the Company hereby covenant Guarantors, jointly and severally, agree with each Underwriter as followsthe Initial Purchasers: (a) to furnish such information to the Initial Purchasers promptly, without charge, during the period referred to in paragraph (c) below, as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution many copies of the Capital SecuritiesOffering Circular and any amendments and supplements thereto as it may reasonably request; (b) that, during such period after the date hereof and prior to prepare the Prospectus in a form approved completion of the distribution of the Securities by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Final Circular (including by means of any filings with the Commission made pursuant to the Exchange Act or Prospectus the Exchange Act Regulations) and to file no will not effect such amendment or supplement without the consent of the Representative, not to be unreasonably withheld, except that nothing contained in this Section 5(b) shall prohibit the Company from filing with the Commission any report or schedule which the Representatives Company, on the advice of outside counsel, believes is required to be filed in order to comply with applicable law. Neither the consent of the Representative, nor the Representative’s delivery of any such amendment or supplement, shall reasonably object constitute a waiver of any of the conditions set forth in writing; (e) to furnish Section 7 hereof. If at any time prior to the Underwriters for completion of the distribution of the Securities by the Initial Purchasers, the Company has issued or shall have issued any written communication, which would be deemed a period “free writing prospectus” as defined in Rule 405 under the Securities Act if the placement of five years from the date of Securities contemplated by this Agreement were conducted as a public offering made pursuant to a registration statement filed with the Commission under the Securities Act (a “Supplemental Offering Document”), and there occurred or occurs an event or development as a result of which such Supplemental Offering Document conflicted or would conflict with the information contained in the Disclosure Package or the Final Circular or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will (i) as soon as available, copies notify the Representative of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, the same; (ii) subject to the requirements of this paragraph (b) of this Section 5, will prepare at its own expense and provide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, an amendment or supplement that will correct such statement or omission; and (iii) will supply any supplemented or amended Supplemental Offering Document to the Initial Purchasers and counsel for the Initial Purchasers without charge in such quantities as soon as practicable after may be reasonably requested. Clause (i) of the filing thereoffirst Section of this paragraph (b) does not apply to statements in or omission from any document in the Disclosure Package, copies of all reports filed by any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to the Company or the Trust with Guarantors by or on behalf of the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the SubsidiariesInitial Purchasers specifically for use therein; (fc) that, if at any time prior to advise the Underwriters promptly completion of the happening sale of the Securities by the Initial Purchasers, any event known to occurs as a result of which the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichFinal Circular, in the judgment of the Trust and the Companyas then amended or supplemented, would require the making of include any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, andor if it should be necessary to amend or supplement the Final Circular to comply with applicable law, during such time, to prepare and the Company will promptly furnish (i) notify the Representative of the same; (ii) subject to the Underwriterrequirements of paragraph (b) of this Section 5 will prepare at its own expense and provide to the Initial Purchasers pursuant to paragraph (a) of this Section 5, at an amendment or supplement that will correct such statement or omission or effect such compliance; and (iii) will supply any supplemented or amended Final Circular to the Trust's Initial Purchasers and counsel for the Company's expense, Initial Purchasers without charge in such amendments or supplements to such Prospectus quantities as may be necessary reasonably requested. Clause (i) of the first Section of this paragraph (c) does not apply to reflect statements in or omission from any document in the Disclosure Package, any Supplemental Offering Document or the Final Circular in reliance upon and in conformity with written information furnished to the Company or the Guarantors by or on behalf of the Initial Purchasers specifically for use therein; (d) to cooperate with the Representative for the qualification of the Securities for sale by the Initial Purchasers under the laws of such jurisdictions as the Representative reasonably may designate and will maintain such qualifications in effect as long as reasonably requested by the Representative for the sale of the Securities by the Initial Purchasers; provided, however, that the Company shall not be required to qualify to do business in any jurisdiction in which it is not then so qualified, to file any general consent to service of process or to take any other action which would subject it to general service of process or to taxation in any such change jurisdiction where it is not then so subject. The Company will promptly advise the Representative of the receipt by the Company of any written notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (e) to use commercially reasonable efforts to do and perform all things reasonably required to be done and performed by it under this Agreement and the Transaction Documents prior to or after the Closing Date and to furnish satisfy all conditions precedent on their part to the Underwriters a copy obligations of such proposed amendment the Initial Purchasers to purchase and accept delivery of the Securities; (f) that none of the Company, the Guarantors or supplement before filing any such amendment of their respective Affiliates, nor any person acting on its or supplement with their behalf (other than the CommissionInitial Purchasers or any of their respective Affiliates, as to whom the Company and the Guarantors express no representations or agreements) will, directly or indirectly, make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of the Securities under the Securities Act; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies that none of the Registration StatementCompany, the Guarantors or any of their respective Affiliates, nor any person acting on its or their behalf (other than the Initial Purchasers or any of their respective Affiliates, as initially filed to whom the Company and the Guarantors express no opinion) will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Commission, and of all amendments or supplements thereto Securities; (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iiih) so long as delivery any of a prospectus by an Underwriter or dealer may be required by the Securities Act or are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act RegulationsAct, at any time that the Company is not then subject to Section 13 or 15(d) of the Exchange Act, to provide at the Company’s expense to each holder of the Securities and to each prospective purchaser (as many copies designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any Preliminary Prospectus and information required to be provided by Rule 144A(d)(4) under the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Securities Act; (hi) to cooperate with the Representative and use their commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through the facilities of DTC; (j) to apply the net proceeds of from the sale of the Capital Securities and by the Debentures Company in accordance with the statements under the caption "“Use of Proceeds" ” in the Prospectus; (i) to make generally available to its security holders Disclosure Package and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketFinal Circular; (k) not to engage take, directly or indirectly, any action which is designed to or which has constituted or which might reasonably be expected to cause or result in stabilization or manipulation of the price of any security of the Company and maintain, at its expense, a registrar and transfer agent for the Capital Guarantors to facilitate the sale or resale of the Securities; (l) in connection with the offer and sale of the Securities, not to offer Securities or any other securities convertible into or exchangeable or exercisable or redeemable for the Securities in a manner in violation of the Securities Act; (m) not to distribute any prospectus or other offering material, other than the Disclosure Package and the Final Circular, in connection with the offer and sale of the Securities; (n) to refrain during a period of 45 days from the date of the Offering Circular, without the prior written consent of Deutsche Bank Securities Inc., from, directly or indirectly, (1) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the Representativessale of, voluntarily making any public announcement of a disposition or transfer, or otherwise disposing of or transferring (or entering into any transaction or device which is designed to, or would be expected to, result in the disposition by any person at any time in the future of), any Securities, or any securities convertible into or exercisable or exchangeable for the Securities or filing any registration statement under the Securities Act with respect to any of the foregoing (except for (i) a registration statement on Form S-3 relating to a proposed dividend reinvestment plan or employee stock purchase plan of NRF, (ii) a registration statement on Form S-3 relating to the resale of shares of Common Stock issuable upon exchange of the Securities, the 7.25% Exchangeable Notes, the 7.50% Exchangeable Notes, the 8.875% Exchangeable Notes or the 11.50% Exchangeable Notes; (iii) a post-effective amendment to any of NRF’s registration statement on Form S-3 (No. 333-184356), NRF’s registration statement on Form S-3 (333-152545), NRF’s registration statement on Form S-3 (333-146679) or NRF’s registration statement on Form S-3 (No. 333-175259), which registration statements relate to the resale of shares of Common Stock issuable upon exchange of the 8.875% Exchangeable Notes, 11.50% Exchangeable Notes, the 7.25% Exchangeable Notes and the 7.50% Exchangeable Notes, respectively, or a prospectus supplement to the prospectus included in any of such registration statements, in either case, for the purposes of naming the selling stockholders who may offer and sell such shares from time to time in the manner described therein, (iv) a period universal shelf registration statement on Form S-3 and/or Form S-4 relating to securities that may be offered or sold by NRF, provided that NRF will not sell any shares of 180 Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock pursuant to such registration statement within 45 days after from the date of the Final Circular, and (v) a registration statement on Form S-8 with respect to grants of stock options, restricted stock, LTIP Units or other stock based awards to employees, consultants or directors of NRF pursuant to an employee benefit plan in existence on the date hereof), or (2) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the Securities whether any such swap or transaction described in clause (1) or (2) above is to be settled by delivery of Securities or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Securities to be issued hereunder, (B) the issuance of Common Stock by NRF upon exchange or repurchase of the Securities under this Agreement, (C) securities issued in connection with employee benefit plans, stock option plans, long-term incentive plan, direct stock purchase plans and/or distribution reinvestment plans existing at the date of this Agreement, (D) any securities issued by NRF upon the exercise of an option, warrants or rights outstanding on the date hereof and referred to directly or indirectly in the Disclosure Package and the Final Circular, (E) grants of stock options, restricted stock or LTIP Units to employees, consultants or directors of NRF or its Subsidiaries pursuant to an employee benefit plan of NRF in existence on the date hereof and described in the Disclosure Package and the Final Circular, provided that the grantees thereof agree not to sell, offer, issue, sell, contract to sell dispose of or otherwise dispose transfer any such stock options (or the shares underlying such options), restricted stock or LTIP Units or Securities during such 45-day period without the prior written consent of Deutsche Bank Securities Inc. on behalf of the Initial Purchasers, (F) any Common Stock issued by NRF upon redemption of any additional securities of the Trust OP Units, (G) the issuance of Common Stock or units of the Company in connection with the acquisition of assets in a transaction exempt from the requirements of the Securities Act or (H) the issuance of Common Stock by NRF upon exchange of the 7.25% Exchangeable Notes, the 7.50% Exchangeable Notes, the 8.875% Exchangeable Notes or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities11.50% Exchangeable Notes; (mo) not to, and to use its commercially reasonable best efforts to cause its officers, directors and affiliates not to to, (i1) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the CompanyCompany or NRF, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the CompanyCompany or NRF, to facilitate the sale or resale of any of the Capital Securities, (ii2) sell, bid for, purchase or or, except as provided herein, pay anyone any compensation for soliciting purchases of the Capital Securities or (iii3) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company or NRF; (p) that NRF will use its best efforts to enable each of NRF and the Private REIT to meet the requirements to qualify as a REIT under the Code until the respective Boards of Directors of NRF or the Private REIT determines that it is no longer in the best interests of NRF or the Private REIT, as the case may be, to qualify as a REIT; (q) that the transfer restrictions and the other provisions set forth in the Disclosure Package and the Final Circular under the caption “Notice to Investors,” including the legend required thereby, shall apply to the Securities except as otherwise agreed by the Company, the Guarantors and the Representative; (r) that NRF will use its commercially reasonable best efforts to list all Underlying Shares issuable upon exchange of the Securities on the NYSE, subject to notice of issuance, for as long as any share of Common Stock is listed on the NYSE; (s) that NRF will reserve and keep available at all times, free of preemptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy any obligations to issue Common Stock upon exchange of the Securities; and (nt) that the provisions NRF will not, and will not permit any of the engagement letter agreement dated March 5its Affiliates to, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery resell any Securities that have been acquired by any of this Agreement and the consummation of the transactions contemplated herebythem.

Certain Covenants. (i) The Trust Partnership and the Company hereby covenant and Intermediate Partnership agree with each Underwriter as followsthe Underwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Units for offering and sale under the securities or blue sky laws of such states as the Representatives you may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital SecuritiesUnits; provided that the Partnership shall not be required to qualify as a foreign partnership or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Units); and to promptly advise you of the receipt by the Partnership of any notification with respect to the suspension of the qualification of the Units for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (b) during the period of time referred to prepare in the Prospectus second sentence in a form approved by the Underwriters paragraph (e) below, to advise you and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request counsel for the purposes contemplated by the Securities Act RegulationsUnderwriter promptly and, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) you, to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of : (i) the receipt of any comments from, or any request by, by the Commission for amendments amendment of or supplements a supplement to the Registration Statement Statement, the Basic Prospectus or the Final Prospectus or for additional information with respect thereto, or information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Units for offering or sale in any jurisdictionjurisdiction or the initiation of any proceeding for such purpose; and (iii) of any change in the business, prospects, financial condition or results of operations of the Partnership or the Intermediate Partnership, or of the initiation or threatening happening of any proceedings for event, which makes any statement of such purposes anda material fact made in the Registration Statement or the Final Prospectus (as then amended or supplemented) untrue or that requires the making of any additions to or changes in the Registration Statement or the Final Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, if or of the Commission necessity to amend or supplement the Final Prospectus (as then amended or supplemented) to comply with the Act or any other government agency or authority should law. If at any time within the period of time referred to in the second sentence in paragraph (e) below, the Commission shall issue any such orderstop order suspending the effectiveness of the Registration Statement, to the Partnership and the Intermediate Partnership will make every reasonable effort to obtain the lifting or removal withdrawal of such order at the earliest possible time; (c) to furnish to you, at your request and without charge, (i) one signed copy of the Registration Statement as soon originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the Registration Statement and (ii) such number of conformed copies of the Registration Statement as possible; originally filed and of each amendment thereto, but without exhibits, as you may request; (d) prior to advise the Representatives promptly end of the period of time referred to in the second sentence in paragraph (e) below, not to file any proposal amendment to amend or supplement the Registration Statement or Prospectus and to file no such make any amendment or supplement to the Final Prospectus, or file any document that, upon filing, becomes an Incorporated Document, of which you and counsel for the Representatives Underwriter shall not previously have been advised or to which, after you and counsel for the Underwriter shall have received a copy of the document proposed to be filed, you shall reasonably object in writingobject; provided that your consent shall not be unreasonably withheld or delayed; (e) to furnish cause the Final Prospectus to be filed pursuant to, and in compliance with, Rule 424(b). As soon after the Underwriters for a period of five years from the date execution and delivery of this Agreement (i) as soon possible and thereafter from time to time for such period as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed a prospectus is required by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required Act to be delivered under in connection with sales of the Securities Units by the Underwriter or any dealer, the Partnership and the Intermediate Partnership will expeditiously deliver to the Underwriter and each dealer, without charge but with any printing or delivery expenses to be paid by the Selling Unitholders as set forth below in Section 4(ii)(c), as many copies of the Final Prospectus (and of any amendment or supplement thereto) as you may reasonably request. The Partnership and the Intermediate Partnership consent to the use of the Final Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act Regulations whichand with the securities or Blue Sky laws of the jurisdictions in which the Units are offered by the Underwriter and by all dealers to whom Units may be sold, both in connection with the offering and sale of the Units and for such period of time thereafter as the Final Prospectus is required by the Act to be delivered in connection with sales of the Units by the Underwriter or any dealer. If during such period of time any event shall occur that in the judgment of the Trust and Partnership or the Company, would require the making of any change Intermediate Partnership or in the Prospectus then being used so that opinion of counsel for the Prospectus would not include an untrue statement of a material fact or omit to state a material fact Underwriter is required to be stated set forth in the Final Prospectus (as then amended or supplemented) or should be set forth therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Final Prospectus (or to file under the Exchange Act any document that, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Partnership and the Intermediate Partnership will forthwith prepare and, during subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or to such timedocument), to prepare and promptly will expeditiously furnish to the UnderwriterUnderwriter and dealers a reasonable number of copies thereof, at the Trust's expense of the Selling Unitholders if such supplement is to the prospectus supplement relating to the offering of the Units. In the event that the Partnership or the Intermediate Partnership and the Company's expenseUnderwriter agree that the Final Prospectus should be amended or supplemented, such amendments the Partnership and the Intermediate Partnership, if requested by you, will promptly issue a press release announcing or supplements disclosing the matters to such Prospectus as may be necessary to reflect any such change and to furnish to covered by the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;supplement; and (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (if) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen months after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the "effective date of the Registration Statement;" (as defined in Rule 158(c) of the Act), an earnings statement of the Partnership (which need not be audited) complying with Section 11(a) of the Act. (jii) to use its best efforts to effect Each Selling Unitholder agrees, severally and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file jointly, with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;Underwriter: (ka) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreementindirectly, any action designed to stabilize or manipulate the price of the Capital Securities that would constitute or any security of the Company, or which may cause or result in, or which that might in the future reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of the Capital Securities or any security of the Company, Partnership to facilitate the sale or resale of the Units; and (b) to advise you promptly, and if requested by you, will confirm such advice in writing, so long as delivery of a prospectus relating to the Units by an underwriter or dealer may be required under the Act, of (i) any material change in the Partnership's condition (financial or otherwise), prospects, earnings, business or properties which comes to the attention of the Capital Securitiessuch Selling Unitholder, (ii) sell, bid for, purchase any change in information in the Registration Statement or pay anyone any compensation for soliciting purchases of the Capital Securities Final Prospectus relating to such Selling Unitholder or (iii) pay any new material information relating to the Partnership or agree to pay relating to any person any compensation for soliciting any order matter stated in the Final Prospectus which comes to purchase any other securities the attention of the Companysuch Selling Unitholder; and (nc) that to pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the provisions Underwriter except as set forth under Section 5 hereof) in connection with (i) the preparation and filing of the engagement letter agreement dated March 5Final Prospectus, 1999and any supplements thereto, between and the Company printing and Friedmanfurnishing of copies of each thereof to the Underwriter and to dealers (including costs of mailing and shipment), Billingsother than an amendment to the Registration Statement required in order for the Partnership to discharge its obligations under the Acquisition Agreement (as defined herein), Xxxxxx & Co.(ii) the issuance, Inc. shall survive the execution sale and delivery of this Agreement the Units and (iii) the determination of eligibility of the Units for investment under state law (including the legal fees and other disbursements of counsel to the Underwriter) and the consummation printing and furnishing of copies of any blue sky surveys or legal investment surveys to the transactions contemplated herebyUnderwriter and to dealers.

Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows: (a) FAREISI Subsidiary 8 hereby covenants and agrees that, upon the request of EXPERIAN at any time prior to furnish the Effective Date, it shall transfer and convey to NEWCO on the Effective Date or promptly thereafter, all of the real property (or any portion thereof so requested) owned by it and listed under its name on Part 1(I) of Schedule 2.02(a) attached hereto, free and clear of all Encumbrances, except for FAREISI Permitted Encumbrances and, in connection therewith, it shall deliver to NEWCO such information as may be required deeds in recordable form, endorsements, assurances, conveyances, releases, discharges, assignments, certificates or other instruments of transfer and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities conveyance, duly executed by FAREISI Subsidiary 8 or blue sky laws of such states other Person, as the Representatives case may designate be, as NEWCO and/or EXPERIAN reasonably deems necessary to vest in NEWCO all right, title and interest in and to maintain such qualifications in effect so long as required for the distribution real property, free and clear of the Capital Securities;any Encumbrance of any kind, except FAREISI Permitted Encumbrances. (b) FAREISI Subsidiary 7 hereby covenants and agrees that, upon the request of EXPERIAN at any time prior to prepare the Prospectus in a form approved by the Underwriters Effective Date, it shall transfer and file such Prospectus with the Commission pursuant convey to Rule 424(b) not later than 10:00 a.m. (New York City time), NEWCO on the day following Effective Date or promptly thereafter, all of the execution assets (or any portion thereof so requested) owned by it and delivery listed under its name on Part 1(H) of this Agreement Schedule 2.02(a) attached hereto, free and clear of all Encumbrances, except for FAREISI Permitted Encumbrances and, in connection therewith, it shall deliver to NEWCO such endorsements, assurances, conveyances, releases, discharges, assignments, certificates or other instruments of transfer and conveyance, duly executed by FAREISI Subsidiary 7 or such other Person, as the case may be, as NEWCO and/or EXPERIAN reasonably deems necessary to vest in NEWCO all right, title and interest in and to furnish promptly (such assets, free and with respect to the initial delivery clear of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery any Encumbrance of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXXkind, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestFAREISI Permitted Encumbrances. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust Issuers, jointly and the Company hereby severally, covenant ----------------- and agree with each Underwriter as followsthe Initial Purchasers that: (a) None of the Issuers will amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to furnish such information the proposed amendment or supplement and as to which the Initial Purchasers shall not have given its consent (which consent shall not be unreasonably withheld). The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements to the Final Memorandum that may be required and otherwise to reasonably necessary or advisable in connection with the resale of the Securities by the Initial Purchasers. (b) The Issuers will cooperate with the Initial Purchasers in qualifying arranging for the Capital qualification of the Securities for offering and sale under the securities or blue sky "Blue Sky" laws of such states jurisdictions as the Representatives Initial Purchasers may designate and to maintain will continue such qualifications in effect so for as long as required for may be necessary to complete the distribution dis- tribution of the Capital Securities; (b) to prepare the Prospectus in a form approved Securities by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers; provided, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectushowever, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies -------- ------- that in connection therewith none of the Prospectus (Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of the Prospectus as amended process in any jurisdiction or supplemented if the Trust and the Company shall have made to take any amendments other action that would subject it to general service of process or supplements thereto after the effective date to taxation in respect of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, doing business in any jurisdiction in which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;it is not otherwise subject. (c) If, at any time prior to advise the Representatives promptly and (if requested completion of the resale by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness Initial Purchasers of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus Notes or the ProspectusPrivate Exchange Notes, or any event shall occur as a result of which it is necessary, in the suspension opinion of counsel for the qualification of the Capital Securities for offering or sale in any jurisdictionInitial Purchasers, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Final Memorandum in order to make such Final Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or Prospectus and if for any other reason it shall be necessary to file no such amendment amend or supplement the Final Memorandum in order to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecomply with applicable laws, copies of all annual, quarterly and current reports rules or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commissionregulations, the NASD Issuers shall (subject to Section 5(a)) forthwith amend or any securities exchange and (iii) supplement such other information Final Memorandum at their own expense so that, as the Underwriters may reasonably request regarding the Trustso amended or supplemented, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would such Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingmisleading and will comply with all applicable laws, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments rules or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;regulations. (gd) to furnish the Representatives and counsel for the UnderwritersThe Issuers will, without charge, (i) signed copies of provide to each Initial Purchaser and to counsel to the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, Initial Purchasers as many copies of each of the Preliminary Memorandum and Final Memorandum or any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements amendment or supplement thereto as the Representatives Initial Purchasers may reasonably request. (he) During the period of five years from the Closing Date, the Issuers will furnish to the Initial Purchasers (a) as soon as available, a copy of each report and other communication (financial or otherwise) of any Issuer mailed to the Trustee or the holders of the Securities, stockholders or any national securities exchange on which any class of securities of any Issuer may be listed other than materials filed with the Commission and (b) from time to time such other information concerning the Issuers as the Initial Purchasers may reasonably request. (f) If this Agreement shall terminate or shall be terminated after execution because of any failure or refusal on the part of the Issuers to comply with the terms or fulfill any of the conditions of this Agreement, the Issuers agree to reimburse the Initial Purchasers for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Initial Purchasers) incurred by you in connection herewith. (g) The Issuers will apply the net proceeds of from the sale of the Capital Securities and the Debentures in accordance with the statements materially as set forth under the caption "Use of Proceeds" in the Prospectus;Final Memorandum. (h) None of the Issuers or any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities. (i) For so long as the Securities constitute "restricted" securities within the meaning of Rule 144(a)(3) under the Securities Act, the Issuers will not, and will not permit any of the Subsidiaries to, solicit any offer to make generally available buy or offer to its security holders and to sell the Representatives Securities by means of any form of general solicitation or general advertising (as soon as practicable, but those terms are used in Regulation D under the Securities Act) or in any event not later than manner involving a public offering within the end meaning of Section 4(2) of the fiscal quarter first occurring after Securities Act, except in connection with the first anniversary exchange offer contemplated by the Registration Rights Agreement. (j) For so long as any of the effective date Securities remain outstanding and are "restricted securities" within the mean- ing of Rule 144(a)(3) under the Securities Act and not able to be sold in their entirety under Rule 144 under the Securities Act (or any successor provision), the Issuers will make available, upon request, to any seller of such Securities the information specified in Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to Section 13 or 15(d) of the Registration Statement Exchange Act. (or 90 days if such 12-month period coincides k) The Issuers will use their best efforts to (i) permit the Securities to be included for quotation on the PORTAL Market and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company ("DTC"). (l) In connection with the Company's fiscal yearSecurities offered and sold in an offshore transaction (as defined in Regulation S), an earnings statement complying the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Section 11(a) of the Securities Act (Regulation S and will not, except in form, at the option of the Company, complying accordance with the provisions of Rule 158 of the Regulation S, if applicable, issue any such Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent form of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar definitive securities;. (m) to The Issuers will use its their best efforts to cause its officers, directors do and affiliates not perform all things required to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated be done and performed by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of them under this Agreement and the consummation other Offering Documents prior to or after the Closing Date and to satisfy all conditions precedent on their part to the obligations of the transactions contemplated herebyInitial Purchasers to purchase and accept delivery of the Securities.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus (or a term sheet as permitted by Rule 434) with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend or supplement the Prospectus to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the law; (g) to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representative, be required by the Securities Act or requested by the Commission; (h) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the Underwriters, without charge, Underwriters and obtain the consent of the Representative to the filing; (i) to furnish promptly to the Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request; (j) to furnish to each Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iie) copies above, a copy of any document incorporated by reference proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the Prospectus (including exhibits thereto) manner and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be within the time periods required by the Securities Exchange Act or and the Securities Exchange Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.; (hk) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus; (il) to make generally available to its security holders and to deliver to the Representatives Representative as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jm) to use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National The Nasdaq SmallCap Market and to file with the NASDAQ National The Nasdaq SmallCap Market all documents and notices required by the NASDAQ National Market it of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National quoted on The Nasdaq SmallCap Market; (kn) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lo) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold hereunder, or (B) any shares of Common Stock issued by the Company upon the exercise of an option outstanding on the date hereof and referred to in the Prospectus; (mp) not to, and to use its best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and; (nq) to cause each officer and director of the Company and certain stockholders specified to the Company by the Representative to furnish to the Representative, prior to the first Date of Delivery, a letter or letters, substantially in the form of Exhibit A hereto, pursuant to which each such person shall agree not to, directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of Common Stock or securities convertible into or exchangeable for Common Stock or (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, in each case for a period of 180 days from the date of the Prospectus, without the prior written consent of the Representative on behalf of the Underwriters; (r) that the provisions of the engagement letter agreement dated March 5July 15, 1999, 2003 between the Company and Friedman, Billings, Xxxxxx & Co., Inc. the Representative shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein; (s) that the Company shall (i) obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $ million which shall apply to the offering contemplated herein and (ii) cause the Representative to be added to such policy such that up to $ of its expenses pursuant to Section 9(a) shall be paid directly by such insurer and (iii) shall cause the Representative to be added as an additional insured to such policy in respect of the offering contemplated herein; (t) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; and (u) that the Company will comply with all of the provisions of any undertakings in the Registration Statement.

Certain Covenants. The Trust Issuers jointly and the Company hereby severally covenant and agree with each Underwriter as followsthe Initial Purchasers that: (ai) The Issuers will not amend or supplement the Final Memorandum or any amendment or supplement thereto unless (A) the Initial Purchasers shall have been advised and furnished a copy for a reasonable period of time prior to furnish such information as the proposed amendment or supplement and (B) the Initial Purchasers shall have given their consent (which consent shall not be unreasonably withheld). The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel for the Initial Purchasers, make any amendments or supplements to the most recent Preliminary Memorandum or the Final Memorandum that may be required and otherwise to necessary in connection with the resale of the Securities by the Initial Purchasers in the manner contemplated by the Final Memorandum (or, if the Final Memorandum is not yet in existence, the most recent Preliminary Memorandum). (ii) The Issuers will cooperate with the Initial Purchasers in qualifying arranging for the Capital qualification of the Securities for offering and sale under the securities or blue sky "Blue Sky" laws of such states jurisdictions in the United States as the Representatives Initial Purchasers may designate and to maintain will continue such qualifications in effect so for as long as may be necessary to complete the resale of the Securities by the Initial Purchasers; provided, however, that in connection therewith none of the Issuers shall be required to qualify as a foreign corporation or to execute a general consent to service of process in any jurisdiction or to take any other action that would subject it to general service of process or to taxation in excess of a nominal amount in respect of doing business in any jurisdiction in which it is not otherwise subject. (iii) If, at any time prior to the completion of the resale by the Initial Purchasers of the Notes or the Private Exchange Notes, any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Final Memorandum, in order to make such Final Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser or Prospectus and if for any other reason it shall be necessary to file no such amendment amend or supplement the Final Memorandum in order to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecomply with applicable laws, copies of all annual, quarterly and current reports rules or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commissionregulations, the NASD Issuers shall (subject to Section 5(i)) forthwith amend or any securities exchange and (iii) supplement such other information Final Memorandum at their own expense so that, as the Underwriters may reasonably request regarding the Trustso amended or supplemented, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would such Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingmisleading and will comply with all applicable laws, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments rules or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;regulations. (giv) to furnish the Representatives and counsel for the UnderwritersThe Issuers will, without charge, (i) signed copies of provide to the Registration Statement, as initially filed with Initial Purchasers and to counsel for the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, Initial Purchasers as many copies of each Preliminary Memorandum or Final Memorandum or any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements amendment or supplement thereto as the Representatives Initial Purchasers may reasonably request. (hv) None of the Issuers or any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Securities Act) which could be integrated with the sale of the Securities in a manner which would require the registration under the Securities Act of the Securities. (vi) For so long as any of the Securities remain outstanding, the Company will furnish to the Initial Purchasers as soon as available, a copy of each report or other communication (financial or otherwise) of the Company mailed to the Trustee or holders of the Securities or stockholders or filed with the Commission or any national securities exchange on which any class of securities of the Company may be listed. (vii) The Company will apply the net proceeds of from the sale of the Capital Securities and the Debentures in accordance with the statements as set forth under the caption "Use of Proceeds" in the Prospectus;Final Memorandum. (viii) Prior to the Closing Date, the Company will furnish to the Initial Purchasers, as soon as they have been prepared by or are available to the Company, a copy of any consolidated financial statements of the Company and the Subsidiaries, for any period subsequent to the period covered by the most recent financial statements appearing in the Final Memorandum. (ix) The Company will not, and will not permit any of the Subsidiaries to, engage in any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) in connection with the offering of the Securities or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. (x) For so long as any of the Securities remain outstanding, the Company will make available at its expense, upon request, to any holder of Securities and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act. (xi) The Issuers will use their reasonable best efforts to (i) permit the Securities to make generally available to its security holders and to the Representatives as soon as practicable, but be designated PORTAL securities in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. (the "NASD") relating to trading in the NASD's Portal Market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company's fiscal year. (xii) In connection with Securities offered and sold in an offshore transaction (as defined in Regulation S), an earnings statement complying the Issuers will not register any transfer of such Securities not made in accordance with the provisions of Section 11(a) of the Securities Act (Regulation S and will not, except in form, at the option of the Company, complying accordance with the provisions of Rule 158 Regulation S, if applicable, issue any such Securities in the form of definitive securities. (xiii) If this Agreement shall terminate or shall be terminated after execution pursuant to any provision hereof (other than by reason of a default or omission by the Initial Purchasers of their obligations hereunder) or if this Agreement shall be terminated by the Initial Purchasers because of any failure or refusal on the part of the Securities Act Regulations) covering a period of 12 months beginning after Issuers to comply with the effective date terms or fulfill any of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date conditions of this Agreement, not the Company agrees to offerreimburse the Initial Purchasers for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Initial Purchasers) incurred by the Initial Purchasers in connection herewith, issue, sell, contract but in no event will the Company be liable to sell or otherwise dispose the Initial Purchasers for damages on account of any additional securities loss of anticipated profits from the sale of the Trust or the Company substantially similar Securities. (xiv) The Issuers will not become, at any time prior to the Capital Securities expiration of three years after the Closing Date, an open-end investment company, unit investment trust, closed-end investment company or any securities convertible into face-amount certificate company that is or exchangeable for or that represent is required to be registered under Section 8 of the right to receive any such similar securities;Investment Company Act. (mxv) For so long as the Initial Purchasers continue to distribute Securities, the Issuers will file, within the time periods prescribed by the applicable Canadian Securities Laws, such documents and reports as may be required to be filed by the Issuers with Canadian Securities Regulators under the applicable Canadian Securities Laws relating to the private placement of Securities by the Initial Purchasers; provided that the Initial Purchasers have delivered a request to effect such filings together with such information as to permit the Issuers to do so, and the Issuers will pay any filing fee prescribed with respect thereto. (xvi) The Issuers will use its their reasonable best efforts to cause its officers, directors do and affiliates not perform all things required to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated be done and performed by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of them under this Agreement and any other Basic Documents prior to or after the consummation Closing Date and to satisfy all conditions precedent on their part to the obligations of the transactions contemplated herebyInitial Purchasers to purchase and accept delivery of the Securities.

Certain Covenants. The Trust provisions set forth in Section 6 of the Third Amendment are superceded in their entirety by this Section 7. Unless and until the financial statements for the fiscal quarters ended December 31, 2005, June 30, 2006, September 30, 2006, and December 31, 2006, the Financial Restatement, and the Company financial statements for the fiscal year ended March 31, 2006, together with the certificates and reports required to be delivered pursuant to Section 5.01, have, in each case, been delivered, and any Reporting Violations are cured, each of Holdings and the Borrower hereby covenant covenants and agree agrees with each Underwriter as followsLender and the Administrative Agent that: (a) neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, (i) declare or make, or agree to furnish such information as may be required and pay or make, directly or indirectly, any Restricted Payment otherwise permitted by clause (x)(B) of Section 6.08(a) of the Credit Agreement or (except to cooperate the extent of Restricted Payments made by the Borrower to Holdings in qualifying order to permit Holdings to make Restricted Payments of the Capital Securities for offering and sale under type allowed by clauses (iii) through (v) of Section 6.08(a) of the securities Credit Agreement) clause (xi) of Section 6.08(a) of the Credit Agreement, or blue sky laws incur any obligation (contingent or otherwise) to do so or (ii) make any investment in any Unrestricted Subsidiary if any proceeds of such states as the Representatives may designate and investment are to maintain such qualifications in effect so long as required be used for the distribution of the Capital Securities;any purpose otherwise prohibited by this clause (a); and (b) neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, give any consideration to prepare or for the Prospectus benefit of any holder of Existing Subordinated Debt for any amendment, modification or waiver of any agreement, instrument or other document evidencing or governing any Existing Subordinated Debt or any waiver or consent of or arrangement with any of such holders of the Existing Subordinated Debt (in each case, a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time“Subordinated Debt Amendment”), on the day following the execution and delivery of this Agreement and to furnish promptly (and in each case with respect to a Reporting Violation; provided that the initial delivery foregoing shall not prohibit payment of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus a cash fee (or of the Prospectus as amended or supplemented equivalent thereof) in connection with any such Subordinated Debt Amendment if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments fromsuch fee does not exceed an amount that would be, based upon available information, usual and customary for fees paid to obtain similar consents or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or waivers under similar circumstances and (ii) at the issuance by time of, and after giving effect to, the Commission payment of any stop order suspending such fee, the effectiveness sum of the Registration Statement or of any order preventing or suspending Revolving Commitments exceeds the use of any Preliminary Prospectus or the Prospectus, or sum of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed Revolving Exposures by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestleast $35,000,000. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust provisions set forth in Section 8 of the First Amendment are superceded in their entirety by this Section 13. Unless and until the financial statements for the fiscal quarters ended December 31, 2005 and June 30, 2006, the Financial Restatement, and the Company financial statements for the fiscal year ended March 31, 2006, together with the certificates and reports required to be delivered pursuant to Section 5.01, have, in each case, been delivered, and any Reporting Violations are cured, each of Holdings and the Borrower hereby covenant covenants and agree agrees with each Underwriter as followsLender and the Administrative Agent that: (a) neither Holdings nor the Borrower will, nor will they permit any Restricted Subsidiary to, (i) declare or make, or agree to furnish such information as may be required and pay or make, directly or indirectly, any Restricted Payment otherwise permitted by clause (x)(B) of Section 6.08(a) of the Credit Agreement or (except to cooperate the extent of Restricted Payments made by the Borrower to Holdings in qualifying order to permit Holdings to make Restricted Payments of the Capital Securities for offering and sale under type allowed by clauses (iii) through (v) of Section 6.08(a) of the securities Credit Agreement) clause (xi) of Section 6.08(a) of the Credit Agreement, or blue sky laws incur any obligation (contingent or otherwise) to do so or (ii) make any investment in any Unrestricted Subsidiary if any proceeds of such states as the Representatives may designate and investment are to maintain such qualifications in effect so long as required be used for the distribution of the Capital Securities;any purpose otherwise prohibited by this clause (a); and (b) neither Holdings nor the Borrower will, nor will they permit any Subsidiary to, give any consideration to prepare or for the Prospectus benefit of any holder of Existing Subordinated Debt for any amendment, modification or waiver of any agreement, instrument or other document evidencing or governing any Existing Subordinated Debt or any waiver or consent of or arrangement with any of such holders of the Existing Subordinated Debt, in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and each case with respect to a Reporting Violation; provided that the initial delivery foregoing shall not prohibit payment of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus a cash fee (or of the Prospectus as amended equivalent thereof) in connection with any such amendment, modification or supplemented waiver if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments fromsuch fee does not exceed an amount that would be, based upon available information, usual and customary for fees paid to obtain similar consents or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or waivers under similar circumstances and (ii) at the issuance by time of, and after giving effect to, the Commission payment of any stop order suspending such fee, the effectiveness sum of the Registration Statement or of any order preventing or suspending Revolving Commitments exceeds the use of any Preliminary Prospectus or the Prospectus, or sum of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed Revolving Exposures by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably requestleast $35,000,000. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectus; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required requested by the Representative for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any such jurisdiction where it is not presently qualified, (ii) consent to the service of process or to file annual reports under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Shares) or (iii) subject itself to taxation with respect to doing business in any jurisdiction in which it is not otherwise so subject; (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as reasonably practicable and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective; (c) to prepare the Prospectus in a form approved by reasonably satisfactory to the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree to in writing and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the first day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to in writing to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXXEDGAR, except to the extent permitted by Regulation S-T; (cd) to advise xx xdvise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (de) to advise the Representatives immediatelyRepresentative promptly, confirming and (if requested by the Representative) to confirm such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possiblereasonable practicable; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative, upon advice of counsel to the Underwriters, shall reasonably object in writing; (ef) to furnish to the Underwriters for a period of five three years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock not publicly available, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange not publicly available and (iii) such other information not publicly available as the Underwriters may reasonably request regarding the Trust, the Company and/or and the Subsidiaries; (fg) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within during the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company, or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time during which a Prospectus relating to the Shares is required to be delivered under the Securities Act Regulations to amend or supplement the Prospectus to comply with the Securities Act and, during such time, to promptly prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representative may from time to time reasonably request so that the Prospectus as so amended or supplemented will not, in the light of the circumstances when it is so delivered, be misleading, or so that the Prospectus will comply with the Securities Act; (h) to file as promptly as reasonably practicable with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the reasonable judgment of the Company or the Representative, as advised by counsel to the Underwriters, be required by the Securities Act or requested by the Commission; (gi) prior to filing with the Commission any amendment to the Registration Statement, any supplement to the Prospectus or any Prospectus pursuant to Rule 424 under the Securities Act, to furnish a copy thereof to the Representatives Representative and counsel for the UnderwritersUnderwriters and obtain the consent of the Representative to the filing, without chargesuch consent not to be unreasonably withheld, conditioned or delayed; (ij) to furnish promptly to the Representative, upon request, a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (iitherewith) and such number of conformed copies of any document incorporated by reference in the foregoing as the Representative may reasonably request; (k) to furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus (including exhibits thereto) and (iii) so long as delivery of during the period in which a prospectus by an Underwriter or dealer may Prospectus relating to the Shares is required to be required by the Securities Act or delivered under the Securities Act Regulations, as many copies a copy of any Preliminary Prospectus document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act Regulations; (hl) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus; (im) to make generally available to its security holders and to deliver to the Representatives Representative as soon as reasonably practicable, but in any event not later than the end of the first full fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jn) to use its best commercially reasonable efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (ko) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lp) to refrain during a period of 180 days from the date of the Prospectus, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, (or entering into any additional securities transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Common Stock, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; the foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B) any shares of Common Stock issued by the Company upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof and referred to in the Prospectus, (C) the registration of shares of Common Stock under, and grants of Common Stock and stock options related to Common Stock pursuant to existing employee benefit plans of the Company or (D) any shares of Common Stock issued as consideration in connection with any acquisition of all or substantially all of the stock or assets of another entity (provided that, if the Company registers the resale of any such shares of Common Stock under the Securities Act by the recipients thereof, the Company shall not request effectiveness of such resale registration statement for a date prior to the expiration of such 180-day period; and provided further, that each beneficial owner of any shares of Common Stock issued in connection with this clause (D) who will own 5% or more of the outstanding Common Stock of the Company (as determined in accordance with Rule 13d-3 of the Exchange Act) following such issuance shall enter into a lock-up agreement in substantially the form attached hereto as Exhibit B with respect to such Common Stock for a period covering the remainder of such 180-day period); (mq) not to, and to use its best efforts to cause its officers, directors directors, employees, agents and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, so as to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and; (nr) to cause (i) each Selling Stockholder and (ii) each officer and director of the Company to furnish to the Representative, prior to the Closing Time, a letter or letters, substantially in the form of Exhibit B hereto; (s) that the provisions of the engagement that certain letter agreement dated March 5April 4, 1999, 2004 between the Company and Friedman, Billings, Xxxxxx & Co., Inc. the Representative shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, to the extent such letter agreement is not superseded or amended by this Agreement; (t) that the Company shall obtain or maintain, as appropriate, Directors and Officers liability insurance in the minimum amount of $5 million which shall apply to the offering contemplated herein; (u) if at any time during the 90-day period after the Registration Statement becomes effective, any rumor, publication or event relating to or affecting the Company shall occur as a result of which, in the reasonable opinion of the Representative, the market price of the Common Stock has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative, responding to or commenting on such rumor, publication or event; and (v) to comply with all of the applicable provisions of the undertakings in the Registration Statement. Each Selling Stockholder, severally and not jointly, hereby agrees with each Underwriter: (a) to deliver to the Representative prior to the Closing Time a properly completed and executed United States Treasury Department Form W-8 (if the Selling Stockholder is a non-United States person, within the meaning of the Code) or Form W-9 (if the Selling Stockholder is a United States person, within the meaning of the Code); (b) to furnish to the Representative, prior to the Closing Time, a letter or letters, substantially in the form of Exhibit B hereto; (c) if, at any time prior to the date on which the distribution of the Shares as contemplated herein and in the Prospectus has been completed, as determined by the Representative, such Selling Stockholder has knowledge of the occurrence of any event as a result of which the Prospectus or the Registration Statement, in each case as then amended or supplemented, would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, such Selling Stockholder will promptly notify the Company and the Representative; and (d) to deliver to the Company or the Underwriters such documentation as the Company or the Underwriters or any of their respective counsel may reasonably request to effectuate any of the provisions of this Agreement.

Certain Covenants. The Trust Company and the Company Operating Partnership hereby covenant and agree with each Underwriter as followsthe Underwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives Underwriter may designate and to maintain such qualifications in effect so as long as required requested by the Underwriter for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such jurisdiction; (b) to prepare the Prospectus in a form approved by the Underwriters Underwriter and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement) Agreement or on such other day as the parties may mutually agree to the Underwriters as many Underwriter copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) in such quantities and at such locations as the Underwriters Underwriter may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters Underwriter will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise furnish a copy of each proposed Free Writing Prospectus to the Representatives promptly Underwriter and (if requested by counsel for the RepresentativesUnderwriter and obtain the consent of the Underwriter prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act RegulationsAct, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule I hereto; (d) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (e) to advise the Representatives Underwriter immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible, (iii) any examination pursuant to Section 8(e) of the Securities Act concerning the Registration Statement, or (iv) if the Company becomes subject to a proceeding under Section 8A of the Securities Act in connection with the public offering of Shares contemplated herein; to advise the Representatives Underwriter promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Underwriter shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters Underwriter promptly of the happening of any event or development known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Shares (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Underwriter or counsel for the Underwriter, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares, or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with any law and, during such time, to promptly prepare and promptly furnish to the Underwriter, at Underwriter copies of the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the CommissionCommission and thereafter promptly furnish at the Company’s own expense to the Underwriter and to dealers, copies in such quantities and at such locations as the Underwriter may from time to time reasonably request of an appropriate amendment or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act Regulations) is so delivered, be misleading or , in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law; (g) to furnish file promptly with the Representatives and counsel for the Underwriters, without charge, (i) signed copies of Commission any amendment or supplement to the Registration Statement, as initially filed with any Preliminary Prospectus, the CommissionProspectus or any Issuer Free Writing Prospectus that may, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery judgment of a prospectus by an Underwriter the Company or dealer may the Underwriter, be required by the Securities Act or requested by the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Commission; (h) prior to filing with the Commission any amendment or supplement to the Registration Statement, any Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus, to furnish a copy thereof to the Underwriter and counsel for the Underwriter and obtain the consent of the Underwriter to the filing; (i) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the ProspectusProspectus and the Disclosure Package; (ij) to the Company will make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), Underwriter an earnings statement complying with or statements of the Company and the Subsidiaries which will satisfy, on a timely basis, the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of and Rule 158 of under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketAct; (k) to engage not to, and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to, prior to the Closing Time (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreementindirectly, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and; (nl) that to use its best efforts to meet the provisions requirements to qualify as a REIT under the Code for each of its taxable years until such time as the board of directors of the engagement letter agreement dated March 5, 1999, between Company determined that it is no longer in the best interests of the Company and Friedmanto qualify as a REIT. (m) to refrain, Billingsfrom the date hereof until 30 days after the date of the Prospectus, Xxxxxx & Co.without the prior written consent of the Underwriter, Inc. shall survive from, directly or indirectly, (i) offering, pledging, selling, contracting to sell, selling any option or contract to purchase, purchasing any option or contract to sell, granting any option for the execution and sale of, or otherwise disposing of or transferring, (or entering into any transaction or device which is designed to, or could be expected to, result in the disposition by any person at any time in the future of), the Preferred Stock or any series of preferred stock of the Company that is pari passu in right of the payment of dividends, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership of the any securities described in clause (i) of this Section 4(m), whether any such swap or transaction described in clause (i) or (ii) above is to be settled by delivery of this Agreement and Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall not apply to: (x) the consummation Shares to be sold hereunder or (y) the filing of any registration statement or amendment or supplement thereto (including any prospectus filed pursuant to Rule 424(b) under the Securities Act) in satisfaction of its obligations to the current holders of the transactions contemplated herebyPreferred Stock.

Certain Covenants. The Trust and Each Pledgor hereby covenants that, until the Company hereby covenant and agree with each Underwriter as followsSecured Obligations have been indefeasibly paid in full, such Pledgor will: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)not, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) except as permitted by each of the receipt Facility Documents, sell, assign (by operation of any comments fromlaw or otherwise) or otherwise dispose of, or grant any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information option with respect theretoto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of Pledged Collateral pledged hereunder by such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockPledgor, (ii) as soon as practicable after create or permit to exist any Lien upon or with respect to any of the filing thereofPledged Collateral, copies of all reports filed by except for the Company security interest under this Agreement or the Trust with the Commission, the NASD or any securities exchange and (iii) permit, except as permitted by each of the Facility Documents, any issuer of Pledged Shares to merge or consolidate with any Person; provided, however, that in the event any Pledged Collateral is sold, transferred or otherwise disposed of in any transaction permitted by each of the Facility Documents (as long as all such other information agreements are in effect, otherwise by whichever agreements remain in effect), such Pledged Collateral shall, concurrently therewith, be automatically released from the lien and security interest under this Agreement and the Collateral Agent shall, at such Pledgor's expense, execute and deliver to such Pledgor such documents as the Underwriters may such Pledgor shall reasonably request regarding to evidence such release; provided that arrangements satisfactory to the Trust, the Company and/or the Subsidiaries; (f) Collateral Agent have been made for delivery to advise the Underwriters promptly it of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is amounts, if any, required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish paid to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy Beneficiaries out of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) to apply the net proceeds of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectussuch disposition; (i) cause each issuer of Pledged Shares not to make generally available issue any stock or other securities or membership interests in addition to its security holders and or in substitution for the Pledged Shares issued by such issuer, except to the Representatives as soon as practicablePledgor, but in (ii) pledge hereunder, immediately upon its acquisition (directly or indirectly) thereof, any event not later than the end and all additional shares of the fiscal quarter first occurring after the first anniversary stock, membership interests or other securities of the effective date each issuer of the Registration Statement Pledged Shares, and (iii) pledge hereunder, immediately upon its acquisition (directly or 90 days if such 12-month period coincides with the Company's fiscal year)indirectly) thereof, an earnings statement complying with the provisions any and all shares of Section 11(a) stock or membership interests of the Securities Act (in formany Person which, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offerbecomes, issue, sell, contract to sell or otherwise dispose as a result of any additional securities occurrence, a direct Subsidiary (other than an Insignificant Subsidiary) of the Trust or the Company substantially similar Pledgor; and PLEDGE AGREEMENT (c) promptly deliver to Collateral Agent all written notices received by it with respect to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyPledged Collateral.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsthat: (a) to The Company will furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital Securities;Shares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares). (b) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will use its commercially reasonable efforts to cause such post-effective amendment to become effective as soon as possible and will advise the Representative promptly and, if requested by the Representative, will confirm such advice in writing, when such post-effective amendment has become effective. (c) The Company will prepare the Prospectus in a form reasonably approved by the Underwriters Representative and file such Prospectus with the Commission pursuant to Rule 424(b) under the Securities Act not later than 10:00 a.m. (New York City time), ) on the second business day following the execution and delivery of this Agreement Agreement, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second business day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;T. (cd) to The Company will advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and writing when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations;. (de) The Company will furnish a copy of each proposed Free Writing Prospectus to the Representative and counsel for the Underwriters and obtain the consent of the Representative (which consent may not be unreasonably withheld) prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) under the Securities Act, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule II hereto. (f) The Company will comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable. (g) The Company shall advise the Representatives immediately, confirming such advice in writing, Representative promptly of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, any Preliminary Prospectus, the Prospectus or Prospectus any Issuer Free Writing Prospectus, or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening threatening, in writing or otherwise, of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing;writing after notice thereof. (eh) to Unless available on XXXXX, the Company will furnish to the Underwriters at the request of the Representative, for a period of five two years from the date of this Agreement (i) as soon as availablereasonably practicable, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockPreferred Shares, (ii) as soon as reasonably practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters Representative may reasonably request regarding the TrustCompany and the Subsidiaries; provided, however, any information that is deemed by the Company and/or to be confidential will be subject to the Subsidiaries;execution and delivery of non-disclosure agreements in favor of the Company in its reasonable discretion. (fi) to The Company will advise the Underwriters Representative promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule) under the Securities Act Regulations which, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representative or counsel for the Underwriters, (i) would require the making of any change in the Prospectus or the Disclosure Package then being used so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement relating to the Shares or (iii) if it is necessary at any time to amend or supplement the Prospectus or the Disclosure Package to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's ’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as may so amended or supplemented will not, in the light of the circumstances when it is so delivered (whether physically or in compliance with Rule 172 under the Securities Act Regulations or similar rule), be necessary to reflect misleading or, in the case of any such change Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the law and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;. (gj) Unless available on XXXXX, the Company will furnish promptly to furnish the Representatives and counsel for the UnderwritersRepresentative, without chargeupon request, (i) a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) and such number of conformed copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto foregoing as the Representatives Representative may reasonably request. (hk) The Company will furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (i) above, a copy of any document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act. (l) The Company will apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in each Preliminary Prospectus and the Prospectus;. (im) to The Company will make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year)Statement, an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;. (jn) to The Company will use its best efforts to effect and maintain the quotation of the Capital Securities Shares on the NASDAQ National Market AMEX and to file with the NASDAQ National Market such exchange all documents and notices required by the NASDAQ National Market such exchange of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market;thereon. (ko) to The Company will engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities;Shares. (lp) The Company will use its best efforts to meet the requirements for qualification as a real estate investment trust under Sections 856 through 860 of the Code, so long as the Board of Trustees elects that the Company qualify as a REIT. The Board of Trustees has no present intention to change the Company’s election to qualify as a REIT. (q) The Company will conduct its affairs in such a manner so as to reasonably ensure that the Company will not be an “investment company” or an entity “controlled” by an investment company within the meaning of the Investment Company Act. (r) The Company will refrain, during a period of 90 days from the date of this Agreement, without the prior written consent of the RepresentativesRepresentative, for a period of 180 days after the date of this Agreementfrom (i) offering, not pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring, directly or indirectly, any additional securities of the Trust or the Company substantially similar to the Capital Securities Preferred Shares or any securities convertible into or exercisable or exchangeable for Preferred Shares, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of the Preferred Shares, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Preferred Shares or such other securities;, in cash or otherwise. The foregoing sentence shall not apply to the Shares to be sold hereunder. (ms) to The Company will not itself, and will use its best efforts to cause its officers, directors directors, manager and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and. (nt) If, at any time during the 60-day period after the date of this Agreement, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representative the market price of the Preferred Shares, or common beneficial interest into which the Preferred Shares are Convertible, has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith consult with the Representative concerning the advisability and substance of a press release or other public statement, responding to or commenting on such rumor, publication or event and, subject to any reasonable objection by the Company, to prepare and disseminate (in further consultation with the Representative) a press release or other public statement, responding to or commenting on such rumor, publication or event. (u) The Company will actively take reasonable steps to ensure that it will be in material compliance with the applicable provisions of the engagement letter agreement dated March 5, 1999, between Xxxxxxxx-Xxxxx Act and rules and regulations promulgated thereunder upon the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery effectiveness of this Agreement and the consummation of the transactions contemplated herebysuch provisions.

Certain Covenants. The Trust Issuer and the Company hereby Guarantors covenant and agree with each Underwriter as followsof the Initial Purchasers that: (a) The Issuer will not amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers and counsel to furnish such information the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as may to which the Initial Purchasers shall not have given their consent, which consent shall not be required and otherwise to cooperate in qualifying unreasonably withheld. The Issuer will promptly, upon the Capital Securities for offering and sale under reasonable request of the securities Initial Purchasers or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required counsel for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made make any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Preliminary Memorandum or Prospectus the Final Memorandum that may be necessary or for additional information advisable in connection with respect thereto, or (ii) the issuance resale of the Securities by the Commission Initial Purchasers. (b) qualify as a foreign corporation or to execute a general consent to service of process in any stop order suspending jurisdiction or subject itself to any tax in any such jurisdiction where it is not then so subject. (c) If, at any time prior to the effectiveness completion of the Registration Statement or distribution by the Initial Purchasers of any order preventing or suspending the use of any Preliminary Prospectus Notes or the ProspectusPrivate Exchange Notes, any event occurs or information becomes known as a result of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) Final Memorandum as soon as available, copies of all annual, quarterly and current reports then amended or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, supplemented would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact fact, or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, andor if for any other reason it is necessary at any time to amend or supplement the Final Memorandum in order to comply with applicable law, during such time, to prepare the Issuer will promptly notify the Initial Purchasers thereof and promptly furnish to the Underwriterwill prepare, at the Trust's and the CompanyIssuer's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish an amendment to the Underwriters a copy of Final Memorandum that corrects such proposed amendment statement or supplement before filing any omission or effects such amendment or supplement with the Commission;compliance. (gd) to furnish the Representatives and counsel for the UnderwritersThe Issuer will, without charge, (i) signed copies of provide to the Registration Statement, as initially filed with Initial Purchasers and to counsel for the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, Initial Purchasers as many copies of any the Preliminary Prospectus Memorandum and the Prospectus and Final Memorandum or any amendments thereof and supplements amendment or supplement thereto as the Representatives Initial Purchasers may reasonably request. (he) to The Issuer will apply the net proceeds of from the sale of the Capital Securities and the Debentures in accordance with the statements substantially as set forth under the caption "Use of Proceeds" in the Prospectus;Final Memorandum. (f) For so long as any Securities remain outstanding, the Issuer will furnish to the Initial Purchasers copies of all reports and other communications (financial or otherwise) furnished by the Issuer to the Trustee or the holders of the Securities and, as soon as available, copies of any reports or financial statements furnished to or filed by the Issuer with the Commission or any national securities exchange on which any class of securities of the Issuer may be listed. (h) For so long as any of the Securities remain outstanding, the Issuer will make available, upon request, to any holder of such Securities which is subject to transfer restrictions and any prospective purchasers thereof the information specified in Rule 144A(d)(4) under the Act, unless the Issuer is then subject to Section 13 or 15(d) of the Exchange Act. (i) The Issuer and each Guarantor will use its reasonable best efforts to make generally available (i) permit the Securities to its security holders be designated PORTAL securities in accordance with the rules and regulations adopted by the NASD relating to trading in the Representatives Private Offerings, Resales and Trading through Automated Linkages market (the "Portal Market") and (ii) permit the Securities to be eligible for clearance and settlement through The Depository Trust Company. (j) In connection with Securities offered and sold in an off-shore transaction (as soon as practicabledefined in Regulation S) the Issuer will not register any transfer of such Notes not made in accordance with the provisions of Regulation S and will not, but except in accordance with the provisions of Regulation S, if applicable, issue any such Notes in the form of definitive securities. (k) The Issuer and the Guarantors will promptly (and in any event event, not later than the end Closing Date) (i) enter into a Dealer-Manager Agreement (the "Dealer Manager Agreement") appointing BT Securities Corporation as Dealer Manager with respect to an Offer to Purchase and Solicitation of Consents with respect to all outstanding 13% Senior Subordinated Notes due 2005 (the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a"Old Notes") of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect Issuer and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases commence an Offer to Purchase and Solicitation of Consents pursuant to the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Companyterms thereof; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyIssuer will purchase all Old Notes validly tendered pursuant thereto.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states as the Representatives Representative may designate and to maintain such qualifications in effect so as long as required for the distribution of the Capital SecuritiesShares, provided that the Company shall not be required to qualify as a foreign corporation or to consent to the service of process under the laws of any such state (except service of process with respect to the offering and sale of the Shares); (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement or the day following the date on which the price for the Shares is determined, whichever is later, and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. 5:00 p.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in all material respects to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T, and the Company agrees to notify the Underwriters promptly of any such material errors or omissions of which it becomes aware and to promptly correct the same; (c) to advise the Representatives Representative promptly and (if requested by the RepresentativesRepresentative) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations; (d) to advise the Representatives Representative immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any the Preliminary Prospectus Supplement or the Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives Representative promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives Representative shall reasonably object in writing; (e) to furnish to the Underwriters Underwriters, at their request, for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stockCommon Stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the and its Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish promptly upon the Representatives and counsel for request of the Underwriters, without charge, (i) Representative a signed copies copy of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including upon request all exhibits filed therewith or incorporated by reference therein)) and such number of conformed copies of the foregoing as the Representative may reasonably request; h) to furnish to the Representative, not less than two business days before filing with the Commission subsequent to the effective date of the Prospectus and during the period referred to in paragraph (iif) copies above, a copy of any document incorporated by reference in proposed to be filed with the Prospectus (including exhibits theretoCommission pursuant to Section 13, 14, or 15(d) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act; (hi) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Prospectus; (ij) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations,) covering a period of 12 months beginning after the effective date of the Registration Statement; (jk) to use its reasonable best efforts to effect and maintain the quotation listing of the Capital Securities Shares on the NASDAQ National Market New York Stock Exchange and to file with the NASDAQ National Market New York Stock Exchange all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange; (kl) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lm) without after the prior written consent expiration of the RepresentativesUnderwriters' overallotment option as described in section 1(b) hereof, to prepare and distribute bound volumes of transaction documents for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securitiesRepresentative and its legal counsel; (mn) to not itself and to use its reasonable best efforts to cause its officers, directors and affiliates not to to, (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (no) that if at any time during the provisions of period after the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery date of this Agreement and until the consummation distribution of the transactions contemplated herebyShares by the Underwriters has been completed, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in the reasonable opinion of the Representative the market price of the Common Stock has been materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus) and after written notice from the Representative advising the Company to the effect set forth above, to forthwith prepare, consult with the Representative concerning the substance of, and disseminate a press release or other public statement, reasonably satisfactory to the Representative and not inconsistent with the Company's obligations under New York Stock Exchange rules and applicable law, responding to or commenting on such rumor, publication or event.

Certain Covenants. The Trust Partnership and the Company General Partner hereby covenant and agree with each Underwriter as followsagree: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Offered Units for offering and sale under the securities or blue sky laws of such states or other jurisdictions as the Representatives you may designate and to maintain such qualifications in effect so long as required you may request for the distribution of the Capital SecuritiesOffered Units; provided, however, that the Partnership shall not be required to qualify as a foreign limited partnership or to consent to the service of process under the laws of any such jurisdiction (except service of process with respect to the offering and sale of the Offered Units); and to promptly advise you of the receipt by the Partnership or General Partner of any notification with respect to the suspension of the qualification of the Offered Units for offer or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) make available to the Underwriters in New York City, as soon as practicable after this Agreement becomes effective, and thereafter from time to time to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company Partnership shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act; in case any Underwriter is required to deliver (whether physically or through compliance with Rule 172 under the Act Regulationsor any similar rule), which Prospectus and any amendments in connection with the sale of the Offered Units, a prospectus after the nine-month period referred to in Section 10(a)(3) of the Act, or supplements thereto furnished after the time a post-effective amendment to the Underwriters will be identical Registration Statement is required pursuant to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Item 512(a) of Regulation S-TK under the Act, the Partnership will prepare, at its expense, promptly upon request such amendment or amendments to the Registration Statement and the Prospectus as may be necessary to permit compliance with the requirements of Section 10(a)(3) of the Act or Item 512(a) of Regulation S-K under the Act, as the case may be; (c) if, at the time this Agreement is executed and delivered, it is necessary or appropriate for a post-effective amendment to the Registration Statement, or a Registration Statement under Rule 462(b) under the Act, to be filed with the Commission and become effective before the Offered Units may be sold, the Partnership will use its best efforts to cause such post-effective amendment or such Registration Statement to be filed and become effective, and will pay any applicable fees in accordance with the Act, as soon as possible; and the Partnership will advise the Representatives you promptly and (and, if requested by the Representatives) to you, will confirm such advice in writing, (i) when the such post-effective amendment or such Registration Statement has become effective effective, and when any post-effective amendment thereto becomes effective (ii) if Rule 430A under the Securities Act Regulationsis used, when the Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act (which the Partnership agrees to file in a timely manner in accordance with such Rules); (d) if, at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Offered Units, the Registration Statement shall cease to comply with the requirements of the Act with respect to eligibility for the use of the form on which the Registration Statement was filed with the Commission, to (i) promptly notify you, (ii) promptly file with the Commission a new registration statement under the Act, relating to the Offered Units, or a post-effective amendment to the Registration Statement, which new registration statement or post-effective amendment shall comply with the requirements of the Act and shall be in a form satisfactory to you, (iii) use its best efforts to cause such new registration statement or post-effective amendment to become effective under the Act as soon as practicable, (iv) promptly notify you of such effectiveness and (v) take all other action necessary or appropriate to permit the public offering and sale of the Offered Units to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement or post-effective amendment, if any; (e) if the third anniversary of the initial effective date of the Registration Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at any time during the period when a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any similar rule) in connection with any sale of Offered Units, to file with the Commission, prior to such third anniversary, a new registration statement under the Act relating to the Offered Units, which new registration statement shall comply with the requirements of the Act (including, without limitation, Rule 415(a)(6) under the Act) and shall be in a form satisfactory to you; such new registration statement shall constitute an “automatic shelf registration statement” (as defined in Rule 405 under the Act); provided, however, that if the Partnership is not then eligible to file an “automatic shelf registration statement” (as defined in Rule 405 under the Act), then such new registration statement need not constitute an “automatic shelf registration statement” (as defined in Rule 405 under the Act), but the Partnership shall use its best efforts to cause such new registration statement to become effective under the Act as soon as practicable, but in any event within 180 days after such third anniversary and promptly notify you of such effectiveness; the Partnership shall take all other action necessary or appropriate to permit the public offering and sale of the Offered Units to continue as contemplated in the Prospectus; all references herein to the Registration Statement shall be deemed to include each such new registration statement, if any; (f) to advise the Representatives immediatelyyou promptly, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, by the Commission for amendments or supplements to the Registration Statement Statement, the Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for additional information with respect thereto, or (ii) of notice of institution of proceedings for, or the issuance by entry of a stop order, suspending the effectiveness of the Registration Statement and, if the Commission of any should enter a stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such orderStatement, to make every reasonable effort use its best efforts to obtain the lifting or removal of such order as soon as possible; to advise the Representatives you promptly of any proposal to amend or supplement the Registration Statement Statement, the Basic Prospectus or Prospectus the Prospectus, and to provide you and Underwriters’ counsel copies of any such documents for review and comment a reasonable amount of time prior to any proposed filing and to file no such amendment or supplement to which the Representatives you shall reasonably object in writing; (eg) subject to furnish Section 4(f) hereof, to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of file promptly all reports and documents and any preliminary or definitive proxy or information statement, if any, required to be filed by the Company or the Trust Partnership with the Commission, Commission in order to comply with the NASD Exchange Act for so long as a prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Act or any securities exchange similar rule) in connection with any sale of Offered Units; and (iiito provide you, for your review and comment, with a copy of such reports and statements and other documents to be filed by the Partnership pursuant to Section 13, 14 or 15(d) of the Exchange Act during such other information as the Underwriters may reasonably request regarding the Trustperiod a reasonable amount of time prior to any proposed filing, the Company and/or the Subsidiariesand to file no such report, statement or document to which you shall have objected in writing; and to promptly notify you of such filing; (fh) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time period during which a Prospectus relating to the Capital Securities prospectus is required by the Act to be delivered (whether physically or through compliance with Rule 172 under the Securities Act Regulations whichor any similar rule) in connection with any sale of Offered Units, in the judgment of the Trust and the Company, would which event could require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were are made, not misleading, and to advise the Underwriters promptly if, during such period, it shall become necessary to amend or supplement the Prospectus to cause the Prospectus to comply with the requirements of the Act, and, in each case, during such time, subject to Section 4(f) hereof, to prepare and promptly furnish to the Underwriterfurnish, at the Trust's and the Company's Partnership’s expense, to the Underwriters promptly such amendments or supplements to such Prospectus as may be necessary to reflect any such change or to effect such compliance; (i) if at any time following the issuance of a Permitted Free Writing Prospectus there occurred or occurs an event or development as a result of which such Permitted Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Offered Units) or the Prospectus or any Pre-Pricing Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading, the Partnership will promptly notify Xxxxxxx Xxxxx and will promptly amend or supplement, at its own expense, such Permitted Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission; (j) to make generally available to its security holders an earnings statement of the Partnership (which will satisfy the provisions of Section 11(a) of the Act); (k) to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; you two (g2) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or thereto and documents incorporated by reference therein), (ii) and sufficient copies of any document incorporated by reference in the Prospectus foregoing (including exhibits theretoother than exhibits) and (iii) so long as delivery for distribution of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h) copy to apply the net proceeds each of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the Prospectusother Underwriters; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation; (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible; (c) to prepare the Prospectus in a form reasonably approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement, or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (cd) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to advise the Representatives promptly and (and, if requested by the Representatives) , to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations; (de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule IIA; (f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (g) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to advise the Representatives immediately, and, if requested by the Representatives, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or cease-and-desist order in connection with the public offering of the Shares or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; and to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writingwriting (unless required to do so by law); (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (fh) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act or the Securities Act Regulations which(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) that, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, or (iii) if it is necessary to amend or supplement the Prospectus to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and furnish promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company’s own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading, or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the Securities Act and the Securities Act Regulations; (i) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission; (gj) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, the Preliminary Prospectus or any Issuer Free Writing Prospectus relating to the Shares, to furnish for review a copy thereof to the Representatives and counsel for the UnderwritersUnderwriters and not to file any such proposed amendment or supplement to which the Representatives reasonably object (unless required to do so by law); (k) to furnish promptly to the Representatives, without chargeupon request, (i) signed such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto relating to the Shares (including all exhibits filed therewith or incorporated by reference therein)) as the Representatives may reasonably request; (l) to furnish to the Representatives, (ii) copies not less than one business day before filing with the Commission subsequent to the date of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of during the period in which a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), as many copies a copy of any Preliminary Prospectus document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act Regulations; (hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "“Use of Proceeds" ” in the Disclosure Package and the Prospectus; (in) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or later than 90 days days, if such 12-month period coincides with fiscal quarter is the last fiscal quarter of the Company's ’s fiscal year), ) an earnings statement complying with satisfying the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (jo) to use its best efforts to effect and maintain list the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange; (kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lq) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or reasonably could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including units of limited partnership interest in Caplease, LP) or such securities, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of Common Stock or such other securities, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that the Company may (A) issue shares of Common Stock pursuant to the Company’s 2004 Stock Incentive Plan, as it may be amended and restated from time to time, (B) file or amend a registration statement on Form S-8 relating to the Company’s 2004 Stock Incentive Plan, as it may be amended and restated from time to time, and (C) issue units of limited partnership in Caplease, LP as consideration for the acquisition of real estate properties by Company; (mr) not to, and to use its best efforts to cause its officersofficers and directors not to, directors and affiliates not to (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; (s) to use its best efforts to meet the requirements to qualify as a REIT under the Code, unless it is determined by the Company’s board of directors to be in the best interest of the Company for the Company to no longer so qualify; and (nt) that to use its best efforts not to invest, or otherwise use the provisions proceeds received by the Company from its sale of the engagement letter agreement dated March 5, 1999, between Shares in such a manner as would require the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive or any of its Subsidiaries to register as an investment company under the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyInvestment Company Act.

Certain Covenants. The Trust and the Company hereby covenant and agree agrees with each Underwriter as followsUnderwriter: (a) to furnish such information as may be required and otherwise to cooperate in qualifying the Capital Securities Shares for offering and sale under the securities or blue sky laws of such states jurisdictions (both domestic and foreign) as the Representatives may designate and to maintain such qualifications in effect so as long as required requested by the Representatives for the distribution of the Capital SecuritiesShares; provided that the Company shall not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign corporation; (b) if, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause such post-effective amendment to become effective as soon as possible; (c) to prepare the Prospectus in a form reasonably approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the second day following the execution and delivery of this Agreement or on such other day as the parties may mutually agree and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement, or on such other day as the parties may mutually agree) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statementthereto) in such quantities and at such locations as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXXEDGAR, except to the extent permitted xxxxxtted by Regulation S-T; (cd) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to advise the Representatives promptly and (and, if requested by the Representatives) , to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto to the Registration Statement becomes effective under the Securities Act Regulations; (de) to furnish a copy of each proposed Free Writing Prospectus to the Representatives and counsel for the Underwriters and obtain the consent of the Representatives prior to referring to, using or filing with the Commission any Free Writing Prospectus pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer Free Writing Prospectuses, if any, identified in Schedule IIA; (f) to comply with the requirements of Rules 164 and 433 of the Securities Act Regulations applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission, legending and record keeping, as applicable; (g) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to advise the Representatives immediately, and, if requested by the Representatives, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or cease-and-desist order in connection with the public offering of the Shares or of any order preventing or suspending the use of any the Preliminary Prospectus, the Prospectus or the any Issuer Free Writing Prospectus, or of the suspension of the qualification of the Capital Securities Shares for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; and to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Statement, the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writingwriting (unless required to do so by law); (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (fh) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus prospectus relating to the Capital Securities Shares is required to be delivered under the Securities Act or the Securities Act Regulations which(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) that, in the judgment of the Trust and Company or in the Companyreasonable opinion of the Representatives or counsel for the Underwriters, (i) would require the making of any change in the Prospectus then being used or the Disclosure Package so that the Prospectus or the Disclosure Package would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (ii) as a result of which any Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, or (iii) if it is necessary to amend or supplement the Prospectus to comply with the Securities Act and the Securities Act Regulations and, during such time, to prepare and furnish promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy copies of such the proposed amendment or supplement before filing any such amendment or supplement with the Commission and thereafter promptly furnish at the Company's own expense to the Underwriters and to dealers, copies in such quantities and at such locations as the Representatives may from time to time reasonably request of an appropriate amendment to the Registration Statement or supplement to the Prospectus or the Disclosure Package so that the Prospectus or the Disclosure Package as so amended or supplemented will not, in the light of the circumstances when it (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations) is so delivered, be misleading, or, in the case of any Issuer Free Writing Prospectus, conflict with the information contained in the Registration Statement, or so that the Prospectus or the Disclosure Package will comply with the Securities Act and the Securities Act Regulations; (i) during the time in which a prospectus relating to the Shares is required to be delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), to file promptly with the Commission any amendment to the Registration Statement or the Prospectus or any supplement to the Prospectus that may, in the judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission; (gj) prior to filing with the Commission any amendment to the Registration Statement or supplement to the Prospectus, the Preliminary Prospectus or any Issuer Free Writing Prospectus relating to the Shares, to furnish for review a copy thereof to the Representatives and counsel for the UnderwritersUnderwriters and not to file any such proposed amendment or supplement to which the Representatives reasonably object (unless required to do so by law); (k) to furnish promptly to the Representatives, without chargeupon request, (i) signed such number of conformed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto relating to the Shares (including all exhibits filed therewith or incorporated by reference therein)) as the Representatives may reasonably request; (l) to furnish to the Representatives, (ii) copies not less than one business day before filing with the Commission subsequent to the date of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of during the period in which a prospectus by an Underwriter or dealer may relating to the Shares is required to be required by delivered under the Securities Act or the Securities Act Regulations (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act Regulations), as many copies a copy of any Preliminary Prospectus document proposed to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and during such period to file all such documents in the manner and within the time periods required by the Exchange Act and the Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.Exchange Act Regulations; (hm) to apply the net proceeds of the sale of the Capital Securities and the Debentures Shares in accordance with the its statements under the caption "Use of Proceeds" in the Disclosure Package and the Prospectus; (in) to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than 45 days after the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (or later than 90 days days, if such 12-month period coincides with fiscal quarter is the last fiscal quarter of the Company's fiscal year), ) an earnings statement complying with satisfying the provisions of Section 11(a) of the Securities Act (in such form, at the option of the Company, complying as complies with the provisions of Rule 158 of under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (jo) to use its best efforts to effect and maintain list the quotation of the Capital Securities Shares on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National MarketNew York Stock Exchange; (kp) to engage and maintain, at its expense, a registrar and transfer agent for the Capital SecuritiesShares; (lq) to refrain during a period of 90 days from the date of the Prospectus, without the prior written consent of the Representatives, for a period of 180 days after the date of this Agreementfrom, not directly or indirectly, (i) offering, pledging, selling, contracting to offer, issue, sell, selling any option or contract to sell purchase, purchasing any option or contract to sell, granting any option for the sale of, or otherwise dispose disposing of or transferring (or entering into any additional securities transaction or device which is designed to, or reasonably could be expected to, result in the disposition by any person at any time in the future of), any share of the Trust or the Company substantially similar to the Capital Securities Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (including units of limited partnership interest in Caplease, LP) or such securities, or filing any registration statement under the Securities Act with respect to any of the foregoing, or (ii) entering into any swap or any other agreement or any transaction that represent transfers, in whole or in part, directly or indirectly, the right to receive economic consequence of ownership of Common Stock or such other securities, whether any such similar swap or transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; provided, however, that the Company may (A) issue securities pursuant to the Company's 2004 Stock Incentive Plan, as it may be amended and restated from time to time, (B) file or amend a registration statement on Form S-8 relating to the Company's 2004 Stock Incentive Plan, as it may be amended and restated from time to time, (C) issue shares of common stock pursuant to the Company's existing dividend reinvestment and stock purchase plan, (D) sell shares of Common Stock pursuant to the Company's existing at-the-market offerings, provided that the per-share sale price is equal to or greater than the per-share offering price set forth on the cover of the Prospectus Supplement and that the aggregate amount of all such at-the-market sales during the 90-day lockup period does not exceed $5,000,000, and (E) issue units of limited partnership interest in Caplease, LP as consideration for the acquisition of real estate properties by the Company; (mr) not to, and to use its best efforts to cause its officersofficers and directors not to, directors and affiliates not to (i) take, directly or indirectly indirectly, prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital SecuritiesShares, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities Shares or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; (s) to use its best efforts to meet the requirements to qualify as a REIT under the Code, unless it is determined by the Company's board of directors to be in the best interest of the Company for the Company to no longer so qualify; and (nt) that to use its best efforts not to invest, or otherwise use the provisions proceeds received by the Company from its sale of the engagement letter agreement dated March 5, 1999, between Shares in such a manner as would require the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive or any of its Subsidiaries to register as an investment company under the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyInvestment Company Act.

Certain Covenants. The Trust Borrower covenants and agrees with the Company hereby covenant and agree with each Underwriter as followsHolder that: (a) to furnish such information A. As soon as may be required practicable, and otherwise to cooperate in qualifying within 45 days after the Capital Securities for offering end of each quarter, and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect subject to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on confidentiality and related Regulation FD provisions contained in the day following the execution and delivery of this Purchase Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or Borrower will (ii1) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the UnderwritersHolder, without charge, copies of: (ia) signed copies all reports or other publicly available information that the Borrower or 1st United Bancorp, Inc, the sole shareholder of Borrower (the “Company”), mails or otherwise makes available to shareholders or holders of securities of the Registration StatementBorrower or Company, as initially (b) all reports that may be provided lawfully, financial statements, Call Reports, Bank Performance Reports and proxy or information statements that are filed by the Borrower or the Company with the Securities and Exchange Commission, and of all amendments Nasdaq, any securities exchange, FOFR or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) Borrower’s primary federal regulator and (iiic) so long as delivery other information reasonably request by Holder including without limitation, internal and external loan reviews, allowance for loan loss assessments, and problem and potential problem asset summaries, press releases, analysts’ reports and communications with holders of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus Borrower’s and the Prospectus Company’s securities and any amendments thereof and supplements thereto as the Representatives may reasonably request. (h2) make management available to apply the net proceeds of the sale of the Capital Securities and the Debentures discuss such information. The financial statements provided under this Section 4.0A shall be prepared in accordance with Generally Accepted Accounting Principals, Section 36 of the statements Federal Deposit Insurance Act and applicable regulations thereunder. B. Borrower will not declare, pay or make any dividends or distributions on or in respect of, and will not authorize or call, redeem, repurchase or retire, any Borrower securities or indebtedness ranking pari passu or junior to the Note, including any Borrower capital stock and equity securities, at any time when a default exists hereunder or under the caption "Use Purchase Agreement or where such action would result in such a default. C. Borrower shall not enter into any definitive agreements providing for, or consummate, any acquisitions, mergers, consolidations, sales, leases or transfers of Proceeds" in the Prospectus; (i) to make generally available to all or substantially all its security holders and to the Representatives as soon as practicablebusiness or assets, but in or any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (spin-off, split-off or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) restructuring without the prior written consent of Holder holding not less than a majority of the Representativesoutstanding principal amount of the Note, for unless the Borrower is the survivor of the transaction and that it owns at least 80% or more of the stock of each subsidiary, or if the Borrower is not the survivor, the survivor is an entity organized under the laws of the United States or a period state of 180 days after the date United States that expressly assumes by supplemental indenture the due and punctual payment of the principal and interest and other additional amounts on this Note and under the related Purchase Agreement, and the due and punctual performance and observance of all the covenants and conditions contained therein and in each of the Borrower’s indentures, indebtedness and loan agreements relating to this Note; and provided further, immediately after giving effect to the transaction, there is no Event of Default under the indentures, indebtedness and loan agreements relating to this Note and no event, which after notice of the lapse of time or both, would become such an Event of Default; provided, that if Xxxxxx has not notified Borrower in writing within thirty (30) days of its receipt of a term sheet or letter of intent summarizing the material terms of a proposed transaction which requires Xxxxxx’s consent hereunder that Xxxxxx disapproves of such proposed transaction, such proposed transaction shall be deemed to offer, issue, sell, contract to sell or otherwise dispose have received such necessary prior written consent of Holder. D. The Borrower will promptly notify the Holder of any additional securities changes in its executive officers. E. The Borrower will do all things necessary to preserve and keep its legal existence, rights and franchises in full force and effect. F. The Borrower will cause all of its material properties used or useful in the Trust conduct of its business or the Company substantially similar business of its subsidiaries to the Capital Securities be maintained and kept in good condition, repair and working order, ordinary wear and tear excepted. G. The Borrower will pay or discharge or cause to be paid and discharged before they become delinquent, all taxes, assessments and governmental charges levied upon it or any securities convertible into of its subsidiaries or exchangeable for upon the income, profits or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale property of any of them, and all claims for labor and materials and supplies which unpaid may become a lien upon any properties of the Capital SecuritiesBank or its subsidiaries, provided the Borrower will not be required to pay or discharge or cause to be paid or discharged any tax, assessment, charge or claim the amount, applicability or validity of which are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established on the books and records of the Bank or its subsidiaries. H. The Borrower will provide updated or other financial information as requested by Lender so long as the Note remains outstanding. I. The Borrower shall not incur any additional debt ranking senior to or on a parity with the Note (ii) sellexcept for the creation of deposit liabilities, bid for, purchase or pay anyone any compensation for soliciting purchases of federal funds, advances from the Capital Securities Federal Reserve Bank or (iii) pay Federal Home Loan Bank, and entry into repurchase agreements fully secured by U.S. government or agree to pay to any person any compensation for soliciting any order to purchase any other securities agency securities, each in the ordinary course of the Company; andBorrower’s business) without Xxxxxx’s prior written consent, which consent shall not be unreasonably withheld or delayed. (n) that J. Borrower shall provide Lender with a Covenant Compliance Certificate containing such information relating to the provisions conditions of default as otherwise required by Lender not later than 45 days after each quarter of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebycalendar year.

Certain Covenants. The Trust and the Company hereby covenant and agree with each Underwriter as follows: (a) to furnish such information as may be required The Issuer and otherwise to cooperate each Co-Issuer agree that any Person, designated in qualifying writing by the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution Agent may, upon reasonable prior written notice, consult with proper officials of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters Issuer or such Co-Issuer at such times during normal business hours and file as often as such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time), on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange and (iii) such other information as the Underwriters Person may reasonably request regarding the Trust, performance of the Company and/or Issuer’s and such Co-Issuer's covenants and agreements contained in this Security Agreement or any of the Subsidiaries;Transaction Documents to which they are a party. (fb) The Issuer and each Co-Issuer will, and the Issuer shall cause each Co-Issuer and Support Fund to, comply in all material respects with all requirements of Law applicable to advise the Underwriters promptly Issuer, such Co-Issuer and Support Fund. (c) The Issuer agrees to furnish the Noteholders copies of each of the happening of Transaction Documents and any event known documents to be furnished pursuant to the Trust and/or terms of the Company within the time during which a Prospectus Transaction Documents and such other information and documents relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust Notes and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, as many copies of any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements thereto Collateral as the Representatives Agent may reasonably request. (d) The Issuer and each Co-Issuer will pay or cause to be paid all present and future recording and filing fees, and all legal, financial and miscellaneous out-of-pocket expenses and costs incurred by the Issuer or such Co-Issuers, as the case may be, in connection with the negotiation of and consummation of the transactions contemplated by this Security Agreement and the issuance and sale of its Note. The Issuer and such Co-Issuers further agree that they will pay or cause to be paid, promptly upon demand, any reasonable out of pocket expense incurred by the Agent in connection with the making of amendment to, or the giving of any release, consent or waiver in respect of, this Security Agreement and any document executed pursuant hereto or thereto affecting its Note, including the reasonable fees and disbursements of counsel for the Noteholders in connection therewith. The obligations of the Issuer and such Co-Issuers under the preceding sentences shall be subject to the priority of distributions set forth in Section 14.1 hereof and shall survive the termination of this Security Agreement, the transfer of any Note or portion thereof or interest therein by a Noteholder and the payment of such Note. (e) Each Co-Issuer will promptly add to the Schedule of Assets attached as Schedule II to the related Security Agreement Supplement, a description of and required information pertaining to each separate and identifiable Asset in which such Co-Issuer has ownership rights but which was not listed thereon at a Funding Date (whether or not it was in existence on a Funding Date). (f) Each Co-Issuer will promptly following the acquisition of an Asset (or Release of an Asset) or upon the loss or sale of an Asset by such Co-Issuer, update the schedules and exhibits attached to the Transaction Documents, with copies to the Agent. (g) The Issuer, each Co-Issuer and each Support Fund will comply with the terms and provisions of its respective Organizational Documents and will not take any action which it is prohibited from taking under its respective Organizational Documents. (h) to apply the net proceeds The Issuer and each Co-Issuer will maintain, or be a subject insured party under, insurance of the sale type that is customarily maintained by business entities of the Capital Securities same type and scale as the Issuer or such Co-Issuer, as the case may be. All such insurance is primary coverage and all premiums therefore due have been paid in full. Schedule I sets forth an accurate and complete list of all certificates of insurance, binders for insurance policies and insurance maintained by the Issuer or under which the Issuer is the beneficiary of coverage. The Issuer and each Co-Issuer shall (and shall cause each Support Fund to) maintain, or cause the Manager to maintain, with financially sound insurers with an S&P Credit Rating of not less than “BBB-" and with a claims-paying ability rated not less than “A:VIII” by A.M. Best's Key Rating Guide, insurance coverages customary for business operations of the type conducted in respect to the transactions contemplated by the Transaction Documents and the Debentures Assets held or maintained by it. The Issuer and each Co-Issuer shall annually provide to the Agent evidence reasonably satisfactory to the Agent (which may be by covernote) that the insurance required to be maintained by each such Co-Issuer, the Issuer and each Support Fund hereunder is in accordance full force and effect, by not later than December 31 of each calendar year. Each Co-Issuer and the Issuer shall notify provide written notice to the Agent within 5 Business Days of knowledge thereof, of any default, breach or condition which with the statements under the caption "Use giving of Proceeds" in the Prospectus;notice or lapse of time, would constitute a default or breach, of any insurance policy. (i) to make generally available to For so long as any of the Notes remain Outstanding, neither the Issuer nor any Co-Issuer will (x) merge or consolidate with or into any other entity or engage in any other business combination with any other entity or (y) sell or transfer all or substantially all of its security holders assets other than in conformity with the Transaction Documents. (j) The Issuer and to each Co-Issuer shall notify the Representatives Agent of any litigation in which the Issuer, such Co-Issuer or any Support Fund, as soon as practicablethe case may be, is a party, promptly, but in any event not no later than 3 Business Days, upon the Issuer’s or such Co-Issuer's receipt of notice of the filing of such litigation, in writing by delivery by a reputable courier service or by registered mail (return receipt requested), all charges prepaid. (k) The Issuer and each Co-Issuer shall execute and deliver to the Agent all such documents and instruments and do all such other acts and things as may be necessary or reasonably required by the Agent to enable the Agent to exercise and enforce their respective rights under the Transaction Documents, and record and file and rerecord and refile all such documents and instruments, at such time or times, in such manner and at such place or places, all as may be necessary or required by the Agent to validate, preserve, perfect and protect the position of the Agent under the Security Agreement provided no such action shall be inconsistent with the Security Agreement or contrary to instructions of the Agent. (l) The Issuer shall cause to be delivered to the Agent (i) within 45 days following the end of each fiscal quarter of the Issuer both (a) quarterly reports including a cash flow report of the Issuer, a certification of the Issuer that the Issuer and each Co-Issuer has complied with each covenant under this Agreement, as applicable, or approved by, the Agent, and (b) quarterly unaudited balance sheets, statements of income, retained earnings and a cash flow report of Issuer; (ii) within 90 days following the end of each fiscal year of the Issuer, annual audited consolidated balance sheets, statements of income, retained earnings and a cash flow report of the Issuer; (iii) annual confirmations of renewal of insurance policies and (iv) such other information regarding the Collateral and the Issuer or any Co-Issuer as the Agent may reasonably request. All financial reports required pursuant to this paragraph shall contain a schedule allocating by Co-Issuer the consolidated information of the Issuer. (m) The Support Fund shall continue to maintain, in accordance with sound business practices, books of account, minute books and other records of such entity which books shall reflect all limited liability company action taken by the directors, managers and members, of the Support Fund (including any action taken by consent without a meeting); and no such meeting, or limited liability company or corporate action will be taken for which such minutes or other appropriate record are not prepared and maintained in such minute books. (n) Each Co-Issuer shall, or shall cause the Manager to, notify the Agent in writing within thirty (30) Business Days if it knows that any material application or registration relating to any Asset (now or hereafter existing) has become abandoned, dedicated to the public domain, invalid or unenforceable, or of any adverse determination or development (including the institution of, or any such final determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office, similar offices or agencies in any foreign countries in which Assets are located or any court but excluding any non-final determinations of the United States Patent and Trademark Office or any similar office or agency in any such foreign country) regarding any Co-Issuer’s or any Support Fund’s ownership of any Assets, its right to register the same, or to keep and maintain the same. (o) If any Co-Issuer, or the Manager, either itself or through any agent, employee, licensee or designee, shall file an application for the registration of any Asset with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency in any foreign country in which Assets are located, such Co-Issuer or Manager shall, by the end of the fiscal quarter first occurring after in which such filing occurred, (i) give the first anniversary Agent written notice thereof and (ii) upon request of the effective date of Agent, shall execute and deliver all instruments and documents, and take all further action, that the Registration Statement (Agent may reasonably request in order to continue, perfect or 90 days if such 12-month period coincides with protect the Company's fiscal year), an earnings statement complying with security interest granted hereunder in the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement;United States or any foreign country. (jp) In the event that any Asset is infringed upon, misappropriated or diluted by a third party in any material respect, the Co-Issuer shall present cause these findings to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded be presented in the overManager Report. The applicable Co-the-counter market Issuer shall take all reasonable and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintainappropriate actions, at its reasonable expense, a registrar to protect or enforce such Asset, including suing for infringement, misappropriation or dilution and transfer agent for an injunction against such infringement, misappropriation or dilution; provided that the Capital Securities;applicable Co-Issuer shall deliver written notice to the Agent of such determination and upon the Agent’s written request shall promptly provide, in reasonable detail, the basis for such determination. (lq) without The Issuer, each Co-Issuer and each Support Fund, as applicable, will, promptly following the prior written consent acquisition of an Asset, terminate any existing management agreement, effective as of the Representativesapplicable Funding Date, for and shall enter into a period new Management Agreement. (r) Each Co-Issuer shall take all appropriate actions in accordance with all applicable requirements of 180 days after Law with respect to the date of this AgreementLicenses, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities and in accordance with the terms of the Trust or the Company substantially similar Licenses, to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officers, directors and affiliates not to ensure (i) take, directly or indirectly prior to termination the ownership of the underwriting syndicate contemplated Licenses by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, applicable Co-Issuer and (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated herebyhereby will not alter or impair any of the Licenses or the ability of any Co-Issuers to continue to do business in the same way as prior to the applicable Funding Date. (s) Each of the Co-Issuers agrees that they shall (and shall cause the Manager to) (w) maintain their rights in and to the Assets, including all applicable registrations and applications, in all material respects, (w) with respect to application or registration and shall, to the extent required by applicable law, diligently prosecute each application for trademark registration and maintain registrations of such Trademarks, including, to the extent required by applicable law, timely paying necessary examination, maintenance and renewal fees, (x) use, and ensure that all licensed users of the Assets use, proper statutory notice in connection with its use of each item of Intellectual Property of its portion of the Assets, including maintaining the quality of any and all products or services used or provided in connection with any of the Trademarks included in the Assets, consistent with the quality of the products and services as the applicable Funding Date, and taking all steps necessary to ensure that all licensed users of any of such Trademarks use such consistent standards of quality and (z) not do any act, or omit to do any act, whereby any portion of the Assets may expire prematurely or become abandoned or invalid. (t) Neither the Issuer nor the applicable Co-Issuer shall take any action which shall cause the factual assumptions identified in the opinion letter delivered by Xxxxx & XxXxxxxx on any Funding Date with respect to certain bankruptcy matters to no longer be true and accurate with respect to the Issuer and the Co-Issuer identified therein.

Certain Covenants. The Trust 5.1 From and after the Company hereby covenant date hereof and agree until the Closing, the parties hereto shall use their respective commercially reasonable efforts, and shall cooperate with each Underwriter as follows: other, to cause the consummation of the Acquisition in accordance with the terms and conditions hereof, including obtaining the Consent of any Governmental Authority (a) to furnish such information as may be required and otherwise to cooperate in qualifying including the Capital Securities for offering and sale expiration or earlier termination of the waiting period under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City timeHSR Act), on the day following the execution and delivery or of this Agreement and to furnish promptly (and any other Person with respect to any Contract or otherwise. Without limiting the initial delivery of such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies generality of the Prospectus (or of the Prospectus as amended or supplemented if the Trust and the Company shall have made any amendments or supplements thereto foregoing, promptly after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement Agreement, each party shall prepare and give (ior cause to be prepared and given) as soon as availableany required Notices under any applicable Laws or otherwise to the extent reasonably necessary to consummate the Acquisition. In particular, copies of all annual, quarterly Toymax and current reports or other communications supplied JAKKS shall each use commercially reasonable efforts to holders of shares of any class of its capital stock, (ii) file HSR Forms under the HSR Act as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commission, the NASD or any securities exchange date hereof and (iii) shall file such other additional documents and furnish such additional information as the Underwriters Federal Trade Commission or the Antitrust Division of the Department of Justice may reasonably request regarding request; PROVIDED that no provision hereof shall require JAKKS or Toymax to divest any business or assets or to hold any business or assets separate. Each party hereto shall cooperate and consult with the Trustother parties with regard to, and provide any necessary information and reasonable assistance to each other party in connection with, all Notices given and other information supplied by such party to any Governmental Authority or other Person in connection with obtaining any Consents or giving any Notices in connection with this Agreement or the Company and/or Acquisition. The filing fees payable in respect of filing all HSR Forms required hereunder shall be payable by JAKKS. 5.2 From and after the Subsidiariesdate hereof and until the Closing, without the prior written consent of JAKKS: (a) no Shareholder shall sell, assign, transfer (including without limitation by gift) or otherwise dispose of any Shares owned of record by such Shareholder, or any interest therein or right thereto; or pledge, hypothecate or otherwise create, incur or suffer to exist any Lien thereon (other than any Permitted Lien); or agree or otherwise become legally obligated to do any thereof; and, unless JAKKS otherwise consents, no such transfer or disposition of Shares to any Person shall be valid or effective as between such Shareholder and such Person unless such Person executes and becomes a party to this Agreement and each other Acquisition Agreement to which the Shareholder (as such) transferring such Shares is a party (and SCHEDULE I hereto shall thereupon be amended accordingly); and (b) no Shareholder shall acquire any Stock, including without limitation by or through the exercise of any option, warrant or other right to purchase, or the conversion of exchange of any security or instrument convertible or exchangeable for, any Stock. 5.3 From and after the date hereof and until the Closing, except as otherwise provided on SCHEDULE 5.3 or elsewhere herein or as contemplated by the Monogram Transaction, or as JAKKS may otherwise consent (which consent shall not be unreasonably withheld), Toymax shall: (a) conduct the Business in its ordinary course; (b) use commercially reasonable efforts to preserve the Business and the Assets and maintain its relationships with customers and other Persons with which it has material business dealings; (c) not (i) sell, lease, transfer or dispose of any material Asset, other than in the ordinary course of business or the disposal of defective, obsolete or otherwise unusable Assets, or (ii) terminate any Contract, except upon expiration of the term thereof as provided therein and except for any Contract that ceases to be necessary in connection with the operation of the Business; (d) use commercially reasonable efforts to maintain all material Permits and Consents, other than any such Permits or Consents that cease to be necessary in connection with the operation of the Business; (e) use its commercially reasonable efforts to maintain in full force and effect (or to replace the same on substantially equivalent terms) all currently applicable insurance relating to the Business or Assets; (f) except as required under a Contract, Permit, Law or otherwise by any Governmental Authority, or in the ordinary course of business consistent with Toymax's past practices, not increase the compensation or other employment benefits payable to advise or for the Underwriters promptly of the happening benefit of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment employee of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the CommissionToymax; (g) to furnish the Representatives and counsel for the Underwritersexcept as required under a Contract, without chargePermit, (i) signed copies of the Registration StatementLaw or otherwise by any Governmental Authority, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery ordinary course of a prospectus by an Underwriter business consistent with Toymax's past practices, not create, incur, assume or dealer may be required by the Securities Act suffer any liability or the Securities Act Regulations, as many copies of obligation to any Preliminary Prospectus and the Prospectus and Shareholder or any amendments thereof and supplements thereto as the Representatives may reasonably request.Affiliate thereof; (h) to apply the net proceeds not amend its Certificate of the sale of the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the ProspectusIncorporation or Bylaws; (i) to make generally available to its security holders and to the Representatives as soon as practicable, but in not merge or consolidate with any event not later than the end of the fiscal quarter first occurring after the first anniversary of the effective date of the Registration Statement (other Person or 90 days if such 12-month period coincides with the Company's fiscal year), an earnings statement complying with the provisions of Section 11(a) of the Securities Act (in form, at the option of the Company, complying with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statementeffect any capital reorganization; (j) to use its best efforts to effect and maintain the quotation not acquire any business or material assets of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market any other Person or make any capital expenditure in excess of companies that have securities that are traded $500,000, other than in the over-the-counter market and quotations for which are reported by the NASDAQ National Marketordinary course of business; (k) not issue or reserve for issuance any shares of its capital stock or issue or grant any options, warrants or other rights to engage and maintainpurchase, at its expenseor securities or instruments convertible into or exchangeable for, a registrar and transfer agent for any capital stock of Toymax, except upon the Capital Securitiesexercise of options, warrants or rights to purchase or the conversion or exchange of securities outstanding on the date hereof, or agree or otherwise become legally obligated to issue or to grant any thereof; (l) not declare, set aside or pay any dividends; and (m) not redeem, repurchase or otherwise reacquire any Shares or retire or cancel any capital stock. 5.4 From and after the date hereof and until the Closing, Toymax shall furnish to JAKKS such information with respect to the Business and Assets as JAKKS may from time to time reasonably request and shall permit JAKKS and its authorized representatives access, at a mutually-agreeable time and during regular business hours and upon reasonable prior Notice to Toymax, to conduct, at JAKKS' sole expense and in a manner that does not interfere with Toymax's operations, a physical inventory of the Assets, to inspect the Real Property, to examine the books and records of Toymax and to make inquiries of responsible Persons designated by Toymax with respect thereto; PROVIDED that any information so disclosed or otherwise made available or accessible to JAKKS shall not constitute an additional representation or warranty of Toymax or any Shareholder beyond those expressly set forth in Article 3, and PROVIDED FURTHER that all such information shall be subject to Section 5.8. 5.5 From and after the date hereof and until the Closing, except for press releases describing the Acquisition to be made by JAKKS and Toymax, respectively, promptly after the execution of this Agreement, each substantially in the form of EXHIBIT G, no party hereto shall make any press release or other public announcement with respect to this Agreement or the Acquisition without the prior written consent of the Representativesother parties (which consent shall not be unreasonably withheld), for a period unless such announcement is required by Law, in which case the other party or parties hereto shall be given Notice of 180 days such requirement prior to such announcement and the parties shall consult with each other as to the scope and substance of such disclosure. 5.6 From and after the date hereof and until this agreement is terminated, none of this AgreementToymax, not to offerany Shareholder, issueany Affiliate thereof, sellor any director, contract to sell officer, employee or otherwise dispose other agent or representative of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities; (m) to use its best efforts to cause its officersthem, directors and affiliates not to (i) takeshall, directly or indirectly prior indirectly, solicit, entertain or consummate any transaction pursuant to termination of the underwriting syndicate contemplated by this Agreementany offer or proposal for, affirmatively respond to any inquiry regarding, or enter into any substantive negotiations or discussions with any Person other than JAKKS with respect to, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate transaction involving the sale or resale other disposition (including without limitation by or through the merger or consolidation of Toymax with any other Person) any of the Capital Securities, (ii) sell, bid for, purchase capital stock of Toymax or pay anyone any compensation for soliciting purchases of the Capital Securities Business or any of the Assets (iii) pay other than in the ordinary course of business and other than the Monogram Transaction). The Shareholders shall promptly advise JAKKS of the receipt of any such inquiry, offer or proposal and the material terms thereof. 5.7 JAKKS acknowledges that certain information relating to or concerned with the Business and affairs of Toymax, including without limitation all non-publicly available Trade Rights, product information, customer and supplier lists, marketing and sales data, personnel and financing and Tax matters is proprietary to Toymax, and that its confidentiality is absolutely essential to the operation of the Business. Until the Closing, all of such information shall be subject to that certain Confidentiality and Non-Disclosure Agreement dated as of January 10, 2002, between Toymax and JAKKS and in favor of Toymax (the "Toymax Confidentiality Agreement"), to which the parties hereby agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company be bound and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of which is incorporated herein by this Agreement and the consummation of the transactions contemplated herebyreference.

Certain Covenants. The Trust Issuers, jointly and the Company hereby severally, covenant ----------------- and agree with each Underwriter as followsthe Initial Purchasers that: (a) None of the Issuers will amend or supplement the Final Memorandum or any amendment or supplement thereto of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to furnish such information the proposed amendment or supplement and as to which the Initial Purchasers shall not have given its consent (which consent shall not be unreasonably withheld). The Issuers will promptly, upon the reasonable request of the Initial Purchasers or counsel to the Initial Purchasers, make any amendments or supplements to the Final Memorandum that may be required and otherwise to reasonably necessary or advisable in connection with the resale of the Notes by the Initial Purchasers. (b) The Issuers will cooperate with the Initial Purchasers in qualifying arranging for the Capital Securities qualification of the Notes for offering and sale under the securities or blue sky "Blue Sky" laws of such states jurisdictions as the Representatives Initial Purchasers may designate and to maintain will continue such qualifications in effect so for as long as required for may be necessary to complete the distribution of the Capital Securities; (b) to prepare the Prospectus in a form approved Notes by the Underwriters and file such Prospectus with the Commission pursuant to Rule 424(b) not later than 10:00 a.m. (New York City time)Initial Purchasers; provided, on the day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of such Prospectushowever, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters as many copies that in connection therewith none of the Prospectus (Issuers -------- ------- shall be required to qualify as a foreign corporation or to execute a general consent to service of the Prospectus as amended process in any jurisdiction or supplemented if the Trust and the Company shall have made to take any amendments other action that would subject it to general service of process or supplements thereto after the effective date to taxation in respect of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, doing business in any jurisdiction in which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T;it is not otherwise subject. (c) If, at any time prior to advise the Representatives promptly and (if requested completion of the resale by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or Prospectus or for additional information with respect thereto, or (ii) the issuance by the Commission of any stop order suspending the effectiveness Initial Purchasers of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus Notes or the ProspectusPrivate Exchange Notes, or any event shall occur as a result of which it is necessary, in the suspension opinion of counsel for the qualification of the Capital Securities for offering or sale in any jurisdictionInitial Purchasers, or of the initiation or threatening of any proceedings for any of such purposes and, if the Commission or any other government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; to advise the Representatives promptly of any proposal to amend or supplement the Registration Statement Final Memorandum in order to make such Final Memorandum not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or Prospectus and if for any other reason it shall be necessary to file no such amendment amend or supplement the Final Memorandum in order to which the Representatives shall reasonably object in writing; (e) to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as availablecomply with applicable laws, copies of all annual, quarterly and current reports rules or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company or the Trust with the Commissionregulations, the NASD Issuers shall (subject to Section 5(a)) forthwith amend or any securities exchange and (iii) supplement such other information Final Memorandum at their own expense so that, as the Underwriters may reasonably request regarding the Trustso amended or supplemented, the Company and/or the Subsidiaries; (f) to advise the Underwriters promptly of the happening of any event known to the Trust and/or the Company within the time during which a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations which, in the judgment of the Trust and the Company, would require the making of any change in the Prospectus then being used so that the Prospectus would such Final Memorandum will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were madeexisting at the time it is delivered to a purchaser, not misleadingmisleading and will comply with all applicable laws, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments rules or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission;regulations. (gd) to furnish the Representatives and counsel for the UnderwritersThe Issuers will, without charge, (i) signed copies of provide to each Initial Purchaser and to counsel to the Registration Statement, as initially filed with the Commission, and of all amendments or supplements thereto (including all exhibits filed therewith or incorporated by reference therein), (ii) copies of any document incorporated by reference in the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by the Securities Act or the Securities Act Regulations, Initial Purchasers as many copies of each of the Preliminary Memorandum and Final Memorandum or any Preliminary Prospectus and the Prospectus and any amendments thereof and supplements amendment or supplement thereto as the Representatives Initial Purchasers may reasonably request. (he) During the period of five years from the Closing Date, the Issuers will furnish to the Initial Purchasers (a) as soon as available, a copy of each report and other communication (financial or otherwise) of any Issuer mailed to the Trustee or the holders of the Notes, stockholders or any national securities exchange on which any class of securities of any Issuer may be listed other than materials filed with the Commission and (b) from time to time such other information concerning the Issuers as the Initial Purchasers may reasonably request. (f) If this Agreement shall terminate or shall be terminated after execution because of any failure or refusal on the part of the Issuers to comply with the terms or fulfill any of the conditions of this Agreement, the Issuers agree to reimburse the Initial Purchasers for all reasonable out-of-pocket expenses (including fees and expenses of counsel for the Initial Purchasers) incurred by you in connection herewith. (g) The Issuers will apply the net proceeds of from the sale of the Capital Securities and the Debentures in accordance with the statements Notes materially as set forth under the caption "Use of Proceeds" in the Prospectus;Final Memorandum. (h) None of the Issuers or any of their respective Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any "security" (as defined in the Securities Act) which could be integrated with the sale of the Notes in a manner which would require the registration under the Securities Act of the Notes. (i) For so long as the Notes constitute "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Issuers will not, and will not permit any of the Subsidiaries to, solicit any offer to make generally available buy or offer to its security holders and to sell the Representatives Notes by means of any form of general solicitation or general advertising (as soon as practicable, but those terms are used in Regulation D under the Securities Act) or in any event not later than manner involving a public offering within the end meaning of Section 4(2) of the fiscal quarter first occurring after Securities Act, except in connection with the first anniversary exchange offer contemplated by the Registration Rights Agreement. (j) For so long as any of the effective date Notes remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act and not able to be sold in their entirety under Rule 144 under the Securities Act (or any successor provision), the Issuers will make available, upon request, to any seller of such Notes the information specified in Rule 144A(d)(4) under the Securities Act, unless the Issuers are then subject to Section 13 or 15(d) of the Registration Statement Exchange Act. (or 90 days if such 12-month period coincides k) The Issuers will use their best efforts to (i) permit the Notes to be included for quotation on the PORTAL Market and (ii) permit the Notes to be eligible for clearance and settlement through The Depository Trust Company ("DTC"). (l) In connection with the Company's fiscal yearNotes offered and sold in an offshore transaction (as defined in Regulation S), an earnings statement complying the Issuers will not register any transfer of such Notes not made in accordance with the provisions of Section 11(a) of the Securities Act (Regulation S and will not, except in form, at the option of the Company, complying accordance with the provisions of Rule 158 of the Securities Act Regulations) covering a period of 12 months beginning after the effective date of the Registration Statement; (j) to use its best efforts to effect and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded Regulation S, if applicable, issue any such Notes in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (l) without the prior written consent form of the Representatives, for a period of 180 days after the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities of the Trust or the Company substantially similar to the Capital Securities or any securities convertible into or exchangeable for or that represent the right to receive any such similar definitive securities;. (m) to The Issuers will use its their best efforts to cause its officers, directors do and affiliates not perform all things required to (i) take, directly or indirectly prior to termination of the underwriting syndicate contemplated be done and performed by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of the Capital Securities or any security of the Company, to facilitate the sale or resale of any of the Capital Securities, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of the Capital Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company; and (n) that the provisions of the engagement letter agreement dated March 5, 1999, between the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of them under this Agreement and the consummation other Offering Documents prior to or after the Closing Date and to satisfy all conditions precedent on their part to the obligations of the transactions contemplated herebyInitial Purchasers to purchase and accept delivery of the Notes.

Certain Covenants. The Trust and the Company hereby covenant covenants and agree agrees with each Underwriter as followsthe Underwriter: (a) to furnish prepare the Rule 462(b) Registration Statement, if necessary, in a form approved by the Underwriter, and file such information as may be required and otherwise Rule 462(b) Registration Statement with the Commission on or prior to cooperate in qualifying the Capital Securities for offering and sale under the securities or blue sky laws of such states as the Representatives may designate and to maintain such qualifications in effect so long as required for the distribution of the Capital Securities; (b) date hereof; to prepare the Prospectus in a form approved by the Underwriters Underwriter, containing information previously omitted at the time of effectiveness of the Registration Statement in reliance on rules 430A, 430B and 430C and to file such Prospectus with the Commission pursuant to Rule 424(b) of the Rules and Regulations not later than 10:00 a.m. (New York City time), on the second business day following the execution and delivery of this Agreement and to furnish promptly (and with respect to the initial delivery of or, if applicable, such Prospectus, not later than 10:00 a.m. (New York City time) on the day following the execution and delivery of this Agreement) to the Underwriters earlier time as many copies may be required by Rule 430A of the Prospectus (or Rules and Regulations; to notify the Underwriter promptly of the Prospectus as amended Company’s intention to file or supplemented if the Trust and the Company shall have made prepare any amendments supplement or supplements thereto after the effective date of the Registration Statement) as the Underwriters may reasonably request for the purposes contemplated by the Securities Act Regulations, which Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the version created to be transmitted to the Commission for filing via XXXXX, except to the extent permitted by Regulation S-T; (c) to advise the Representatives promptly and (if requested by the Representatives) to confirm such advice in writing, when the Registration Statement has become effective and when any post-effective amendment thereto becomes effective under the Securities Act Regulations; (d) to advise the Representatives immediately, confirming such advice in writing, of (i) the receipt of any comments from, or any request by, the Commission for amendments or supplements to the Registration Statement or to the Prospectus in connection with this Offering and to provide a draft of any such amendment or supplement to the Registration Statement, the General Disclosure Package or the Prospectus to the Underwriter for review within an amount of time that is reasonably practical under the circumstances and prior to filing, and to file no such amendment or supplement to which the Underwriter shall have reasonably objected in writing; to advise the Underwriter, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed in connection with the Offering or becomes effective or any supplement to the General Disclosure Package or the Prospectus or for additional information any amended Prospectus has been filed and to furnish the Underwriter with respect theretocopies thereof; to file within the time periods prescribed by the Exchange Act, including any extension thereof, all material required to be filed by the Company with the Commission pursuant to Rule 433(d) or (ii) 163(b)(2), as the case may be; to advise the Underwriter, promptly after it receives notice thereof, of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Issuer Free Writing Prospectus or the Prospectus, or of the suspension of the qualification of the Capital Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings proceeding for any such purpose, or of such purposes any request by the Commission for the amending or supplementing of the Registration Statement, the General Disclosure Package or the Prospectus or for additional information; and, if in the Commission event of the issuance of any stop order or of any other government agency order preventing or authority should issue suspending the use of any Issuer Free Writing Prospectus or the Prospectus or suspending any such orderqualification, and promptly to make every use its reasonable effort best efforts to obtain the lifting or removal withdrawal of such order order; (b) that it has not made and will not make any offer relating to the Securities that would constitute a “free writing prospectus” as soon as possibledefined in Rule 405 of the Rules and Regulations unless the prior written consent of the Underwriter has been received (each, a “Permitted Free Writing Prospectus”); provided that the prior written consent of the Underwriter shall be deemed to advise have been given in respect of the Representatives promptly Free Writing Prospectuses included in Schedule II hereto and any electronic road show, if any. The Company shall furnish to the Underwriter, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each proposed free writing prospectus or any proposal to amend or supplement the Registration Statement or Prospectus and to file no such amendment or supplement thereto to which the Representatives shall reasonably object in writing; (e) be prepared by or on behalf of, used by, or referred to furnish to the Underwriters for a period of five years from the date of this Agreement (i) as soon as available, copies of all annual, quarterly and current reports or other communications supplied to holders of shares of any class of its capital stock, (ii) as soon as practicable after the filing thereof, copies of all reports filed by the Company. The Company or represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and that it has and will comply with the Trust requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Issuer Free Writing Prospectus, including the requirements relating to timely filing with the Commission, the NASD or any securities exchange legending and (iii) such other information as the Underwriters may reasonably request regarding the Trust, the Company and/or the Subsidiariesrecord keeping; (fc) to advise the Underwriters promptly of the happening of if at any event known to the Trust and/or the Company within the time during which when a Prospectus relating to the Capital Securities is required to be delivered under the Securities Act Regulations whichAct, in any event occurs or condition exists as a result of which the judgment of the Trust and the CompanyProspectus, as then amended or supplemented, would require the making of include any change in the Prospectus then being used so that the Prospectus would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, during such time, to prepare and promptly furnish to the Underwriter, at the Trust's and the Company's expense, such amendments or supplements to such Prospectus as may be necessary to reflect any such change and to furnish to the Underwriters a copy of such proposed amendment or supplement before filing any such amendment or supplement with the Commission; (g) to furnish the Representatives and counsel for the Underwriters, without charge, (i) signed copies of the Registration Statement, as initially filed with then amended or supplemented, would include any untrue statement of a material fact or omit to state a material fact necessary to make the Commissionstatements therein not misleading, and of all amendments or supplements thereto (including all exhibits filed therewith if for any other reason it is necessary at any time to amend or incorporated by reference therein), (ii) copies of any document incorporated by reference in supplement the Registration Statement or the Prospectus (including exhibits thereto) and (iii) so long as delivery of a prospectus by an Underwriter or dealer may be required by to comply with the Securities Act or the Securities Act RegulationsExchange Act, as many copies of any Preliminary Prospectus the Company will promptly notify the Underwriter, and upon the Underwriter’s request, the Company will promptly prepare and file with the Commission, at the Company’s expense, an amendment to the Registration Statement or an amendment or supplement to the Prospectus and any amendments thereof and supplements thereto as that corrects such statement or omission or effects such compliance. The Company consents to the Representatives may reasonably request. (h) to apply the net proceeds use of the sale of Prospectus or any amendment or supplement thereto by the Capital Securities and the Debentures in accordance with the statements under the caption "Use of Proceeds" in the ProspectusUnderwriter; (id) to the extent not available on the Commission’s XXXXX system, to make generally available to its security holders and to the Representatives as soon as practicable, but in any event not later than the end of the fiscal quarter first occurring eighteen (18) months after the first anniversary of the effective date of the each Registration Statement (or 90 days if such 12-month period coincides with as defined in Rule 158(c) of the Company's fiscal yearRules and Regulations), an earnings statement of the Company and its consolidated Subsidiaries (which need not be audited) complying with the provisions of Section 11(a) of the Securities Act and the Rules and Regulations (in formincluding, at the option of the Company, complying Rule 158); (e) to take promptly from time to time such actions as the Underwriter may reasonably request to qualify the Securities for offering and sale under the securities or Blue Sky laws of such jurisdictions (domestic or foreign) as the Underwriter may designate and to continue such qualifications in effect, and to comply with such laws, for so long as required to permit the offer and sale of Securities in such jurisdictions; provided that the Company and its Subsidiaries shall not be obligated to qualify as foreign corporations in any jurisdiction in which they are not so qualified or to file a general consent to service of process in any jurisdiction; (f) to supply the Underwriter with copies of all correspondence to and from, and all documents issued to and by, the Commission in connection with the provisions of Rule 158 registration of the Securities under the Securities Act Regulations) covering a period of 12 months beginning after the effective date of or the Registration StatementStatement or the Prospectus, or any amendment or supplement thereto or document incorporated by reference therein; (jg) prior to use its best efforts the Time of Purchase, not to effect issue any press release or other communication directly or indirectly or hold any press conference (other than the Company’s customary quarterly press release and maintain the quotation of the Capital Securities on the NASDAQ National Market and to file with the NASDAQ National Market all documents and notices required by the NASDAQ National Market of companies that have securities that are traded in the over-the-counter market and quotations for which are reported by the NASDAQ National Market; (k) to engage and maintain, at its expense, a registrar and transfer agent for the Capital Securities; (lconference call) without the prior written consent of the RepresentativesUnderwriter (which consent shall not be unreasonably withheld, delayed or conditioned); (h) until the Underwriter shall have notified the Company of the completion of the Offering, that the Company will not, and will cause its affiliated purchasers (as defined in Regulation M under the Exchange Act) not to, either alone or with one or more other persons, and except to the extent expressly set forth in the General Disclosure Package as part of the offering contemplated hereby, bid for or purchase, for any account in which it or any of its affiliated purchasers has a period beneficial interest, any Securities, or attempt to induce any person to purchase any Securities; and not to, and to cause its affiliated purchasers not to, make bids or purchase for the purpose of 180 days after creating actual, or apparent, active trading in or of raising the date of this Agreement, not to offer, issue, sell, contract to sell or otherwise dispose of any additional securities price of the Trust or Securities; (i) to apply the net proceeds from the sale of the Securities as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the heading “Use of Proceeds”; (j) to reserve and keep available at all times, free of preemptive rights, Series A Convertible Preferred Stock and Common Stock for the purpose of enabling the Company substantially similar to satisfy all obligations to issue the Capital Preferred Shares, the Conversion Shares, the CSW Shares and the PSW Shares upon conversion of the applicable Securities or any securities convertible into or exchangeable issued on the Closing Date, in each case assuming that the exercise of the Common Stock Warrants and the conversion of the Preferred Shares occurs based on the trading price of the Common Stock reported on the Principal Market at the Time of Purchase; (k) to use its reasonable best efforts to list for or that represent quotation the right Conversion Shares, the CSW Shares and the PSW Shares on the Principal Market; (l) to receive any such similar securitiescooperate with the Underwriter and use its commercially reasonable efforts to permit the offered Series A Convertible Preferred Stock and Common Stock Warrants to be eligible for clearance and settlement through the facilities of DTC; (m) to use its best efforts to cause its officersuntil the Underwriter shall have notified the Company of the completion of the offering of the Securities, directors and affiliates the Company will not to (i) take, take directly or indirectly prior to termination of the underwriting syndicate contemplated by this Agreement, any action designed to stabilize or manipulate the price of the Capital Securities or any security of the Companydesigned, or which may cause or result in, or which that might in the future reasonably be expected to cause or result in, the or that will constitute, stabilization or manipulation of the price of the Capital Securities or any security of the Company, Company to facilitate the sale or resale of any of the Capital Securities; (n) to use its reasonable best efforts to do and perform all things required to be done or performed under this Agreement by the Company prior to the Time of Purchase, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases and to satisfy all conditions precedent to the delivery of the Capital Securities to be delivered at such time; (o) from the date hereof until 90 days after the date of the Prospectus, to enforce all Lock-up Agreements that restrict or prohibit, expressly or in operation, the offer, sale or transfer of Securities or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities or any of the other actions restricted or prohibited under the terms of the form of Lock-up Agreement. In addition, the Company will announce the Underwriter’s intention to release any director or “officer” (within the meaning of Rule 16a-1(f) under the Exchange Act) of the Company from any of the restrictions imposed by any Lock-up Agreement, by issuing, through a major news service, a press release in form and substance satisfactory to the Underwriter or, if consented to by the Underwriter, in a registration statement that is publicly filed in connection with a secondary offering of the Company’s shares promptly following the Company’s receipt of any notification from the Underwriter in which such intention is indicated, but in any case not later than the close of the third business day prior to the date on which such release or waiver is to become effective; provided, however, that nothing shall prevent the Underwriter, from announcing the same through a major news service, irrespective of whether the Company has made the required announcement; and provided, further, that no such announcement shall be made of any release or waiver granted solely to permit a transfer of securities that is not for consideration and where the transferee has agreed in writing to be bound by the terms of a Lock-up Agreement; and (np) that for so long as the provisions Company is required to pay any Fees (as defined below) to the Underwriter, to immediately notify the Underwriter on each instance the Company receives proceeds from the sale of the engagement letter agreement dated March 5Securities. The Underwriter, 1999may, between in its sole discretion, waive in writing the performance by the Company and Friedman, Billings, Xxxxxx & Co., Inc. shall survive the execution and delivery of this Agreement and the consummation any one or more of the transactions contemplated herebyforegoing covenants or extend the time for their performance.