Common use of Covenants and Agreements of the Company Clause in Contracts

Covenants and Agreements of the Company. The Company agrees with the Purchaser as follows: (a) During the period from the date of this Agreement to the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. (b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified to do business and that would subject it to service of process in suits or taxation. The Company will promptly advise the Purchaser of the receipt by the Company of any 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. (c) The Company will not, nor will it permit any of its Affiliates to, nor will it permit any person acting on its behalf (other than the Purchaser) to, resell any Securities that have been acquired by any of them. (d) The Company will not, nor will it permit its Affiliates or any person acting on its behalf to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities. (e) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf to, 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 any of the Securities under the Securities Act. (f) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf to, 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 any of the Securities. (g) So long as any of the Securities are outstanding, (i) the Securities shall not be listed on a national securities exchange registered under section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section 8 of the Investment Company Act, and, the Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3). (h) During any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the Company shall furnish to (i) the holders, and subsequent holders of the Securities, (ii) Taberna Capital Management, LLC (at 000 Xxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or such other address as designated by Taberna Capital Management, LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Capital Management, LLC), a duly completed and executed certificate in the form attached hereto as Annex F, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not later than forty five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company. (i) The Company, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, shall provide to each holder of the Securities and to each prospective purchaser (as designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for the benefit of the Purchaser, the holders of the Securities, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the Securities. (j) Other than as contemplated by this Purchase Agreement, the Company will not, until one hundred eighty (180) days following the Closing Date, without the Purchaser’s prior written consent, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, directly or indirectly, (i) any Securities or other securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act or (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities or other securities substantially similar to the Securities that would be integrated with the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act. (k) [Reserved]. (l) The Company will not identify any of the Indemnified Parties (as defined below) in a press release or any other public statement without the consent of such Indemnified Party. (m) The Purchaser is granted the right under the Indenture to request the substitution of new notes for all or a portion of the Securities held by the Purchaser (the “Replacement Securities”). The Replacement Securities shall bear terms identical to the Securities with the sole exception of interest payment dates (and corresponding redemption date and maturity date), which will be specified by the Purchaser. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity date) under the Securities. The Company agrees to cooperate with all reasonable requests of Purchaser in connection with any of the foregoing, provided that no action requested of the Company in connection with such cooperation shall materially increase the obligations or materially decrease the rights of the Company pursuant to such documents.

Covenants and Agreements of the Company. The Company covenants and agrees with Taberna and the Purchaser Holders as follows: (a) During the period from the date of this Agreement to the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. (b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified to do business and that would subject it to service of process in suits or taxation. The Company will promptly advise the Purchaser of the receipt by the Company of any 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. (c) The Company will not, nor will it permit any of its Affiliates to, nor will it permit any person acting on its behalf (other than the Purchaser) to, resell any Securities that have been acquired by any of them. (d) The Company will not, nor will it permit its Affiliates or any person acting on its their behalf to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the New Securities. (eb) The Company will not, nor and will it not permit any of its Affiliates or any person acting on its or their behalf to, 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 any of the New Securities under the Securities Act. (fc) The Company will not, nor and will it not permit any of its Affiliates or any person acting on its or their behalf to, 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 any of the New Securities. (gd) So long as any of the New Securities are outstanding, (i) the New Securities shall not be listed on a national securities exchange registered under section Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section Section 8 of the Investment Company Act, and, the New Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3). (h) During any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the Company shall furnish to (i) the holders, and subsequent holders of the Securities, (ii) Taberna Capital Management, LLC (at 000 Xxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or such other address as designated by Taberna Capital Management, LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Capital Management, LLC), a duly completed and executed certificate in the form attached hereto as Annex F, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not later than forty five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company. (ie) The CompanyCompany will, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, shall or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of the Securities and to each prospective purchaser (as designated by such holder) of the SecuritiesHolder, upon the request of such holder or prospective purchaserHolder, any information required to be provided by Rule 144A(d)(4) under the Securities Act. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the benefit of the Purchaser, the holders of the Securities, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the SecuritiesHolders. (jf) Other than Except with respect to the exchange of the Company’s junior subordinated notes for promissory notes which are substantially similar to the New Securities upon substantially the same terms as contemplated by this Purchase Agreementthe Exchange, the Company will not, until one hundred eighty (180) days following the Closing Date, without the Purchaser’s Holders’ prior written consent, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, of directly or indirectlyindirectly to a prospective purchaser (a “Purchaser” or the “Purchasers”), (i) any New Securities or other securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act New Securities, or (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities or other securities substantially similar to the Securities that would be integrated with the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act.16 (k) [Reserved]. (lg) The Company will not identify any of the Indemnified Parties (as defined below) in a press release or any other public statement without the prior written consent of such Indemnified Party, unless such disclosure is required by applicable statute, court of law, regulatory authority or securities exchange. (m) The Purchaser is granted the right under the Indenture to request the substitution of new notes for all or a portion of the Securities held by the Purchaser (the “Replacement Securities”). The Replacement Securities shall bear terms identical to the Securities with the sole exception of interest payment dates (and corresponding redemption date and maturity date), which will be specified by the Purchaser. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity date) under the Securities. The Company agrees to cooperate with all reasonable requests of Purchaser in connection with any of the foregoing, provided that no action requested of the Company in connection with such cooperation shall materially increase the obligations or materially decrease the rights of the Company pursuant to such documents.

Covenants and Agreements of the Company. The Company covenants and agrees with the Purchaser as follows: (a) During the five-year period from the date of this Agreement to following the Closing Date, provided any of the Notes remain outstanding, the Company shall use its best efforts furnish to Purchaser all reports, documents, information and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of financial statements filed by the Closing Date, after giving effect Company with the Commission pursuant to the transactions contemplated by this Purchase AgreementTrust Indenture Act, as if made on the Exchange Act or the Rules and as of the Closing DateRegulations. (b) The Company will arrange During the two-year period following the date of this Agreement, for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, and at any time that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified subject to do business and that would subject it to service of process in suits Section 13 or taxation. The Company will promptly advise the Purchaser 15(d) of the receipt by Exchange Act, upon request of any holder of the Notes, the Company of shall furnish to such holder, and to any notification with respect to the suspension prospective purchaser or purchasers of the qualification Notes designated by such holder, information satisfying the requirements of subsection (d)(4) of Rule 144(A) under the Securities Act. This covenant is intended to be for the benefit of the Securities for sale in any jurisdiction or holders from time to time of the initiation or threatening Notes, and prospective purchasers of any proceeding for the Notes designated by such purposeholders. (c) The Company will shall not, nor will and it permit shall use reasonable efforts to ensure that no Affiliate of the Company will, “offer,” “sell” or solicit offers to buy or otherwise negotiate in respect of any “security” (as each of its Affiliates to, nor will it permit any person acting on its behalf (other than such terms are defined in the PurchaserSecurities Act) to, resell any which could be integrated with the sale of the Notes or the Warrants in a manner that would require the registration of the Notes or the Warrants under the Securities that have been acquired by any of themAct. (d) The Company will shall not, nor will it permit its Affiliates or any person acting on its behalf to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities. (e) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf to, 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 any of the Securities under the Securities Act. (f) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf to, 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 any of the Securities. (g) So so long as any of the Securities Notes are outstanding, be or become (iand use its best efforts not to be or become owned by) the Securities shall not be listed on a national securities exchange registered under section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, is or is required to be, be registered under section Section 8 of the Investment Company Act, andand the Company shall not be or become (and use its best efforts not to be or become owned by) a closed-end investment company required to be registered, but not registered under the Investment Company Act. (e) The Company shall comply with the all agreements set forth in the representation letters of the Company to The Depository Trust Company relating to the approval of the Notes for “book-entry” transfers. (f) For a period ending on the earlier of five (5) years from the date of this Agreement or the date on which the aggregate principal amount of the Note (together with notes issued in connection with the sale of Additional Units simultaneous herewith) outstanding is less than $1,000,000, the Company shall maintain the Portal (or, alternatively national securities exchange listing) listing of the Notes, and the Nasdaq Stock Market (or another national securities exchange) listing of the Common Stock. (g) The Company agrees to file a Notice of Sale of Securities shall otherwise satisfy pursuant to Regulation D, Section 4(6), and/or Uniform Limited Offering Exemption on Form D with respect to the eligibility requirements of Rule 144A(d)(3)Securities as required under Regulation D and to provide a copy thereof to Purchaser promptly after such filing. (h) During any For a period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the Company shall furnish to (i) the holders, and subsequent holders of the Securities, (ii) Taberna Capital Management, LLC (at 000 Xxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or such other address as designated by Taberna Capital Management, LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Capital Management, LLC), a duly completed and executed certificate in the form attached hereto as Annex F, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not later than forty five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) trading days (being a day on which the Nasdaq Stock Market is open for trading equity securities) after the end of each fiscal year effectiveness of the Company. Shelf Registration Statement (i) The Company, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, shall provide to each holder of the Securities and to each prospective purchaser (as designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for the benefit of the Purchaser, the holders of the Securities, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the Securities. (j) Other than as contemplated by this Purchase Agreement“Lock Up Period”), the Company will not, until one hundred eighty (180) days following the Closing Date, without the Purchaser’s prior written consent, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, directly or indirectly, (iA) announce an offering of, or file a registration statement with the Commission relating to, any equity securities of the Company (other than the offering and registration contemplated by the Registration Rights Agreement) or, without the prior written consent of the holders of a majority of the principal amount of Notes then outstanding, offer for sale, sell, assign, transfer, pledge, contract to sell or otherwise dispose of (or enter into any transaction or device which is designed to, or could be expected to, result in the disposition or purchase by any person at any time in the future of) any Securities shares of Common Stock or debt securities (other securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act than short term debt securities) or (ii) any other securities convertible into, into or exercisable or exchangeable forfor shares of Common Stock or debt securities (other than short term debt securities), or sell or grant options, warrants or rights with respect to any Securities shares of Common Stock or debt securities (other than short term debt securities) or securities convertible into or exercisable or exchangeable for Common Stock, debt securities (other than short term debt securities) or substantially similar securities (other than the grant of options, warrants, convertible debenture or rights that are currently authorized pursuant to option plans existing on the date hereof), or (B) enter into any swap or other securities substantially similar derivatives transaction that transfers to the Securities that would be integrated with the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act. (k) [Reserved]. (l) The Company will not identify another, in whole or in part, any of the Indemnified Parties (as defined below) in a press release economic benefits or any other public statement without the consent risks of ownership of such Indemnified Party. shares of Common Stock, whether any such transaction described in the foregoing clauses (mA) The Purchaser or (B) is granted to be settled by delivery of Common Stock, debt securities (other than short term debt securities) or other securities, in cash or otherwise. Notwithstanding anything to the right under contrary contained herein, during the Indenture to request Lock Up Period (I) the substitution of new notes for all or a portion of Company may issue (x) the Securities held as contemplated by the Purchaser this Agreement, (the “Replacement Securities”). The Replacement Securities shall bear terms identical to the Securities with the sole exception y) shares of interest payment dates Common Stock (and corresponding redemption date and maturity date), which will be specified by the Purchaser. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity daterights to purchase such shares) under the Securities. The Company’s employee benefit plans, qualified stock option plans or other employee compensation plans existing on the date hereof or pursuant to currently outstanding options, warrants, convertible debentures or other rights to purchase or acquire Common Stock and (z) equity securities in one or more private placements by the Company, so long as the Company agrees to cooperate does not file a registration statement with all reasonable requests of Purchaser in connection with any the Commission on behalf of the foregoing, provided that no action requested of private placement investors until the Commission has declared effective the Shelf Registration Statement and (II) the Company in connection with such cooperation shall materially increase may file one or more registration statements that include only securities issuable under employee plans approved by the obligations or materially decrease the rights Board of the Company pursuant to such documentsDirectors and registered on Form S-8.

Covenants and Agreements of the Company. The Company covenants and agrees with Taberna and the Purchaser Holders as follows: (a) During the period from the date of this Agreement to the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. (b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified to do business and that would subject it to service of process in suits or taxation. The Company will promptly advise the Purchaser of the receipt by the Company of any 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. (c) The Company will not, nor will it permit any of its Affiliates to, nor will it permit any person acting on its behalf (other than the Purchaser) to, resell any Securities that have been acquired by any of them. (d) The Company will not, nor will it permit its Affiliates or any person acting on its their behalf to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the New Securities. (eb) The Company will not, nor and will it not permit any of its Affiliates or any person acting on its or their behalf to, 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 any of the New Securities under the Securities Act. (fc) The Company will not, nor and will it not permit any of its Affiliates or any person acting on its or their behalf to, 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 any of the New Securities. (gd) So long as any of the New Securities are outstanding, (i) the New Securities shall not be listed on a national securities exchange registered under section Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section Section 8 of the Investment Company Act, and, the New Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3). (h) During any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the Company shall furnish to (i) the holders, and subsequent holders of the Securities, (ii) Taberna Capital Management, LLC (at 000 Xxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or such other address as designated by Taberna Capital Management, LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Capital Management, LLC), a duly completed and executed certificate in the form attached hereto as Annex F, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not later than forty five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company. (ie) The CompanyCompany will, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, shall or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of the Securities and to each prospective purchaser (as designated by such holder) of the SecuritiesHolder, upon the request of such holder or prospective purchaserHolder, any information required to be provided by Rule 144A(d)(4) under the Securities Act. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the benefit of the Purchaser, the holders of the Securities, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the SecuritiesHolders. (jf) Other than Except with respect to the exchange of the Company’s junior subordinated notes for promissory notes which are substantially similar to the New Securities upon substantially the same terms as contemplated by this Purchase Agreementthe Exchange, the Company will not, until one hundred eighty (180) days following the Closing Date, without the Purchaser’s Holders’ prior written consent, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, of directly or indirectlyindirectly to a prospective purchaser (a “Purchaser” or the “Purchasers”), (i) any New Securities or other securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act New Securities, or (ii) any other securities convertible into, or exercisable or exchangeable for, any of the New Securities or other securities substantially similar to the New Securities or (iii) any preferred securities, unless the Company provides the Purchasers with an opinion of counsel (such counsel to have experience and sophistication in the matters addressed in such opinion) addressed to the Purchasers stating that any such offer, sale or other disposition will not result in the New Securities being integrated in a transaction that would be integrated with the Securities under the Securities Act such that the Securities would be required to be registered require registration under the Securities Act. (k) [Reserved]. (lg) The Company will not identify any of the Indemnified Parties (as defined below) in a press release or any other public statement without the prior written consent of such Indemnified Party, unless such disclosure is required by applicable statute, court of law, regulatory authority or securities exchange. (m) The Purchaser is granted the right under the Indenture to request the substitution of new notes for all or a portion of the Securities held by the Purchaser (the “Replacement Securities”). The Replacement Securities shall bear terms identical to the Securities with the sole exception of interest payment dates (and corresponding redemption date and maturity date), which will be specified by the Purchaser. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity date) under the Securities. The Company agrees to cooperate with all reasonable requests of Purchaser in connection with any of the foregoing, provided that no action requested of the Company in connection with such cooperation shall materially increase the obligations or materially decrease the rights of the Company pursuant to such documents.

Covenants and Agreements of the Company. The Company agrees with covenants to the Purchaser Holders as follows: (a) During the period from the date of this Agreement to the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. (b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified to do business and that would subject it to service of process in suits or taxation. The Company will promptly advise the Purchaser of the receipt by the Company of any 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. (c) The Company will not, nor and it will it not permit any of its Affiliates to, nor will it either of them permit any person acting on its or their behalf (other than the PurchaserHolders) to, resell any Securities that have been acquired by any of them. (db) The Company will not, nor and it will it not permit any of its Affiliates or any person acting on its or their behalf to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the Securities. (ec) The Company will not, nor and it will it not permit any of its Affiliates or any person acting on its or their behalf to, 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 any of the Securities under the Securities Act. (fd) The Company will not, nor and it will it not permit any of its Affiliates or any person acting on its or their behalf to, engage in any form of “general solicitation solicitation” or “general advertising” (within the meaning of Regulation DD under the Securities Act) in connection with any offer or sale of the any of the Securities. (ge) So long as any of the Securities are outstanding, (i) the Securities shall not be listed on a national securities exchange registered under section Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section Section 8 of the Investment Company Act, and, the Securities shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3). (hf) During The Company shall, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the Company shall furnish to (i) the holdersHolders, and subsequent holders of the Securities, (ii) Taberna Capital Management, LLC (at 000 Xxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or such other address as designated by Taberna Capital Management, LLC) and (iii) any beneficial owner of the Securities reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Capital Management, LLC)any Holder) or (iii) any designee of (i) or (ii) above, a duly completed and executed officer’s financial certificate in the form attached hereto as Annex F, including the financial statements referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not later than forty forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the CompanyCompany to the extent such financial statements are not publicly available by such dates via the Securities and Exchange Commission’s Electronic Data Gathering, Analysis and Retrieval system. (ig) The CompanyCompany shall, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, shall or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of the Securities and to each prospective purchaser (as designated by such holder) of the Securities, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act, if applicable. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the benefit of the Purchaser, the Holders and any subsequent holders of the Securities, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the Securities. (jh) Other than as contemplated by this Purchase Agreement, the The Company will not, until one hundred eighty (180) days following the Closing Exchange Date, without the Purchaser’s Holders’ prior written consent, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, directly or indirectly, (i) any Securities or other securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act other than as contemplated by this Exchange Agreement or (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities or other securities substantially similar to the Securities that would be integrated with if such action, in each case, will result in the Securities under the Securities Act such that the Securities would be being required to be registered under the Securities Act. (ki) [Reserved]The Company will use its best efforts to meet the requirements to qualify as a REIT under sections 856 through 860 of the Code, effective for the taxable year ending December 31, 2009 (and each fiscal quarter of such year) and succeeding taxable years; provided, however, that the Company shall not be required to make any dividends or distributions in excess of the dividends and distributions limitations under the New Indentures in order to meet any REIT distribution requirements. (lj) The Company will not identify any of the Indemnified Parties (as defined below) in a press release or any other public statement (expressly excluding any such disclosure contained in a required filing with the Commission or which is required by law, any regulatory authority (including self-regulatory authority) or legal proceeding) without the prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. (mk) The Purchaser is Holders are granted the right under the each New Indenture to request the substitution of new notes for all or a portion of the Securities held by them. The Company is required under the Purchaser terms of the applicable New Indenture to issue such notes (the “Replacement Securities”)) upon the Holders surrendering a like amount of Securities to the Company. The Replacement Securities shall bear terms identical to the Securities with the sole exception of interest payment dates (and corresponding redemption date and maturity date), which will be specified by the PurchaserHolders. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity date) under the Securities. The Company agrees to cooperate with all reasonable requests of Purchaser the Holders in connection with any of the foregoing, provided provided, that no action requested of the Company in connection with such cooperation shall materially increase the obligations or materially decrease the rights of the Company pursuant to such documents. (l) The Company and the Holders covenant and agree to execute and deliver (whether at or after the Exchange Date) such other agreements, opinions and certificates as may be reasonably required in order (i) to cancel the Existing Securities and (ii) discharge the Existing Trust II Indenture, the Existing Tranche IV Indenture and the Existing Tranche V Indenture, all on or after the Exchange Date and in accordance with the terms and conditions set forth in such Existing Indenture.

Covenants and Agreements of the Company. The Company covenants and agrees with the Purchaser as follows: (a) During the period from the date of this Purchase Agreement to the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. (b) The Company will arrange for the qualification of the Securities Notes for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified to do business and that would subject it to service of process in suits or taxationNotes. The Company will promptly advise the Purchaser of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (c) The Company will not, nor will it permit any of its Affiliates to, nor will it the Company permit any person acting on its behalf (other than the PurchaserPurchaser and its Affiliates) to, directly or indirectly, resell any Securities Notes that have been acquired by any of them. (d) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf (other than the Purchaser and its Affiliates) to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the SecuritiesNotes. (e) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf to, directly or indirectly, (i) sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would or could be integrated with the sale of the Notes in any manner that would require the registration of the Notes under the Securities Act or (ii) make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of any of the Securities Notes under the Securities Act. (f) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf (other than the Purchaser and its Affiliates) to, engage in any form of “general solicitation solicitation” or “general advertising” (within the meaning of Regulation D) in connection with any offer or sale of the any of the SecuritiesNotes. (g) So long as any of the Securities Notes are outstanding, (i) the Securities Notes shall not be listed on a national securities exchange registered under section Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and system, (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section Section 8 of the Investment Company Act, and, the Securities Notes shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3)) and (iii) the Company shall not engage, nor permit any of its subsidiaries to engage, in any activity that would cause it or any such subsidiary to be an “investment company” under the provisions of the Investment Company Act. (h) During any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the The Company shall furnish to (i) the holdersholder, and subsequent holders holders, of the SecuritiesNotes, (ii) Taberna Kodiak Capital ManagementManagement Company LLC, LLC (at 000 Xxxx2000 Xxxxxx Xxxxxxxxx, 00xx XxxxxSuite 450, Xxx XxxxArlington, XX 00000Virginia 22201, Attention: Rxxxxx X. Xxxxxx, or such other address as designated by Taberna Kodiak Capital Management, Management Company LLC) and (iii) any beneficial owner of the Securities Notes reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Kodiak Capital Management, Management Company LLC), a duly completed and executed officer’s financial certificate in the form attached hereto as Annex FExhibit E, including the financial statements referenced in such AnnexExhibit, which certificate and financial statements shall be so furnished by the Company not later than forty forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company., or, if applicable, such shorter respective periods as may then be required by the Commission for the filing by the Company of Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K. (i) The Company, during During any period in which it the Company is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, or the Company is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, the Company shall provide to each holder of the Securities Notes and to each prospective purchaser (as designated by such holder) of the SecuritiesNotes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act, if applicable. Any information provided by the Company pursuant to this Section 6(i) will not, at the date thereof, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the benefit of the Purchaser, the holders of the SecuritiesNotes, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the SecuritiesNotes. (j) Other than as contemplated by this Purchase Agreement, The Company covenants and agrees with Purchaser that the Company will not, until one hundred eighty (180) days following the Closing Date, without the Purchaser’s prior written consentconsent of Purchaser, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, directly or indirectly, (i) any Securities Notes or other junior subordinated notes or trust preferred securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act or (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities Notes or junior subordinated notes or trust preferred securities unless the aggregate amount of Notes outstanding together with such Notes or junior subordinated notes, trust preferred securities or other securities substantially similar to the Securities that would be integrated with the Securities under the Securities Act such that the Securities would be required proposed to be registered under offered, sold, contracted for sale, granted or otherwise disposed of does not exceed twenty-five percent (25%) of the Securities Act. aggregate of (kx) [Reserved]. the Company’s Consolidated Tangible Net Worth (lafter taking into account such Notes, junior subordinated notes, trust preferred securities or other securities proposed to be offered, sold, granted or otherwise disposed of). For purposes hereof, “Consolidated Tangible Net Worth” shall mean (i) The the consolidated net worth of the Company will not identify and its consolidated subsidiaries minus (ii) the consolidated intangibles of the Company and its consolidated subsidiaries including, without limitation, goodwill, trademarks, trade names, copyrights, patents, patent applications, licenses, and rights in any of the Indemnified Parties (foregoing and other items treated as defined below) intangibles in a press release or any other public statement without accordance with generally accepted accounting principles, as reported in the consent of such Indemnified PartyCompany’s balance sheet contained in its most recent 1934 Act Report. (m) The Purchaser is granted the right under the Indenture to request the substitution of new notes for all or a portion of the Securities held by the Purchaser (the “Replacement Securities”). The Replacement Securities shall bear terms identical to the Securities with the sole exception of interest payment dates (and corresponding redemption date and maturity date), which will be specified by the Purchaser. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity date) under the Securities. The Company agrees to cooperate with all reasonable requests of Purchaser in connection with any of the foregoing, provided that no action requested of the Company in connection with such cooperation shall materially increase the obligations or materially decrease the rights of the Company pursuant to such documents.

Covenants and Agreements of the Company. The Company agrees with covenants to the Purchaser Holders as follows: (a) During the period from the date of this Agreement to the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. (b) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified to do business and that would subject it to service of process in suits or taxation. The Company will promptly advise the Purchaser of the receipt by the Company of any 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. (c) The Company will not, nor and it will it not permit any of its Affiliates to, nor will it permit or any person acting on its or their behalf (other than it being understood that the PurchaserHolders are not persons acting on the Company’s or its subsidiaries behalf) to, resell any Securities Notes that have been acquired by any of them. (db) The Company will not, nor and it will it not permit any of its Affiliates or any person acting on its or their behalf to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the SecuritiesNotes. (ec) The Company will not, nor and it will it not permit any of its Affiliates or any person acting on its or their behalf to, 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 any of the Securities Notes under the Securities Act. (fd) The Company will not, nor and it will it not permit any of its Affiliates or any person acting on its or their behalf to, engage in any form of “general solicitation solicitation” or “general advertising” (within the meaning of Regulation DD under the Securities Act) in connection with any offer or sale of the any of the SecuritiesNotes. (ge) So long as any of the Securities Notes are outstanding, (i) the Securities Notes shall not be listed on a national securities exchange registered under section Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and system, (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section Section 8 of the Investment Company Act, and, the Securities Notes shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3)) and (iii) the Company shall not engage, in any activity that would cause it to be an “investment company” under the provisions of the Investment Company Act. (hf) During The Company shall, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the Company shall furnish to (i) the holdersHolders, and subsequent holders of the SecuritiesNotes, (ii) Taberna Capital Management, LLC (at 000 Xxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, or such other address as designated by Taberna Capital Management, LLC) and (iii) any beneficial owner of the Securities Notes reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Capital Management, LLC)any Holder) or (iii) any designee of (i) or (ii) above, a duly completed and executed officer’s financial certificate in the form attached hereto as Annex FE, including the financial statements and general and administrative expense reports referenced in such Annex, which certificate and financial statements shall be so furnished by the Company not later than forty forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the CompanyCompany to the extent such financial statements are not publicly available by such dates via the Commission’s Electronic Data Gathering, Analysis and Retrieval system. (ig) The CompanyCompany shall, during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, shall or it is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of the Securities Notes and to each prospective purchaser (as designated by such holder) of the SecuritiesNotes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act, if applicable. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the benefit of the Purchaser, the Holders and any subsequent holders of the Securities, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the SecuritiesNotes. (jh) Other than as contemplated by this Purchase Agreement, the The Company will not, until one hundred eighty (180) days following the Closing Exchange Date, without the Purchaser’s Holders’ prior written consent, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, directly or indirectly, (i) any Securities notes or other securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act Notes other than as contemplated by this Exchange Agreement or (ii) any other securities convertible into, or exercisable or exchangeable for, any Securities notes or other securities substantially similar to the Securities that would be integrated with Notes if such action, in each case, will result in the Securities under the Securities Act such that the Securities would be Notes being required to be registered under the Securities Act. (ki) [Reserved]The Company will use its best efforts to meet the requirements to qualify as a REIT under sections 856 through 860 of the Code, effective for the taxable year ending December 31, 2009 (and each fiscal quarter of such year) and succeeding taxable years; provided, however, that the Company shall not be required to comply with any REIT distribution requirements unless and except to the extent that the Company is permitted to do so under the New Indentures (including by reason of a consent by the holders thereunder). (lj) The Company will not identify any of the Indemnified Parties (as defined belowin Section 8(a)) in a press release or any other public statement (expressly excluding any such disclosure contained in a required filing with the Commission or which is required by law, any regulatory authority (including self-regulatory authority) or legal proceeding) without the prior written consent of such Indemnified Party, which consent shall not be unreasonably withheld. (mk) The Purchaser is Holders are granted the right under certain of the Indenture New Indentures to request the substitution of new notes for all or a portion of the Securities Notes held by them. The Company is required under the Purchaser terms of the applicable New Indenture to issue such notes (the “Replacement SecuritiesNotes”)) upon the Holders surrendering a like amount of Notes to the Company. The Replacement Securities Notes shall bear terms identical to the Securities Notes with the sole exception of interest payment dates (and corresponding redemption date and maturity date), which will be specified by the PurchaserHolders. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities Notes vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity date) under the SecuritiesNotes. The Company agrees to cooperate with all reasonable requests of Purchaser the Holders in connection with any of the foregoing, provided provided, that no action requested of the Company in connection with such cooperation shall materially increase the obligations or materially decrease the rights of the Company pursuant to such documents. (l) The Company and the Holders covenant and agree to execute and deliver (whether at or after the Exchange Date) such other agreements, opinions and certificates as may be reasonably required in order to cancel the Existing Notes, all on or after the Exchange Date and in accordance with the terms and conditions set forth in each applicable Existing Indenture. (m) The Company will treat the Notes as indebtedness for Unites States federal income tax purposes, will report consistently with such treatment in its Tax Return filings, and will take no position inconsistent with such treatment.

Covenants and Agreements of the Company. The Company covenants and agrees with the Purchaser as follows: (a) During the period from the date of this Purchase Agreement to the Closing Date, the Company shall use its best efforts and take all action necessary or appropriate to cause its representations and warranties contained in Section 4 hereof to be true in all material respects (without giving effect to any materiality qualifiers therein) as of the Closing Date, after giving effect to the transactions contemplated by this Purchase Agreement, as if made on and as of the Closing Date. (b) The Company will arrange for the qualification of the Securities Senior Notes for sale under the laws of such jurisdictions as the Purchaser may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided, however, that the Company shall not be required in connection therewith to arrange for qualification where it is not now so qualified to do business and that would subject it to service of process in suits or taxationSenior Notes. The Company will promptly advise the Purchaser of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities Senior Notes for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (c) The Company will not, nor will it permit any of its Affiliates to, nor will it the Company permit any person acting on its behalf (other than the PurchaserPurchaser and its Affiliates) to, directly or indirectly, resell any Securities Senior Notes that have been acquired by any of them. (d) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf (other than the Purchaser and its Affiliates) to, engage in any “directed selling efforts” within the meaning of Regulation S under the Securities Act with respect to the SecuritiesSenior Notes. (e) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf to, directly or indirectly, (i) sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would or could be integrated with the sale of the Senior Notes in any manner that would require the registration of the Senior Notes under the Securities Act or (ii) make offers or sales of any security, or solicit offers to buy any security, under circumstances that would require the registration of any of the Securities Senior Notes under the Securities Act. (f) The Company will not, nor will it permit any of its Affiliates or any person acting on its behalf (other than the Purchaser and its Affiliates) to, engage in any form of “general solicitation solicitation” or “general advertising” (within the meaning of Regulation D) in connection with any offer or sale of the any of the SecuritiesSenior Notes. (g) So long as any of the Securities Senior Notes are outstanding, (i) the Securities Senior Notes shall not be listed on a national securities exchange registered under section Section 6 of the Exchange Act or quoted in a U.S. automated inter-dealer quotation system and system, (ii) the Company shall not be an open-end investment company, unit investment trust or face-amount certificate company that is, or is required to be, registered under section Section 8 of the Investment Company Act, and, the Securities Senior Notes shall otherwise satisfy the eligibility requirements of Rule 144A(d)(3)) and (iii) the Company shall not engage, nor permit any of its subsidiaries to engage, in any activity that would cause it or any such subsidiary to be an “investment company” under the provisions of the Investment Company Act. (h) During any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, the The Company shall furnish to (i) the holdersholder, and subsequent holders holders, of the SecuritiesSenior Notes, (ii) Taberna Kodiak Capital ManagementManagement Company LLC, LLC (at 000 Xxxx2000 Xxxxxx Xxxxxxxxx, 00xx XxxxxSuite 450, Xxx XxxxArlington, XX 00000Virginia 22201, Attention: Rxxxxx X. Xxxxxx, or such other address as designated by Taberna Kodiak Capital Management, Management Company LLC) and (iii) any beneficial owner of the Securities Senior Notes reasonably identified to the Company (which identification may be made by either such beneficial owner or by Taberna Kodiak Capital Management, Management Company LLC), a duly completed and executed officer’s financial certificate in the form attached hereto as Annex FExhibit E, including the financial statements referenced in such AnnexExhibit, which certificate and financial statements shall be so furnished by the Company not later than forty forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Company and not later than ninety (90) days after the end of each fiscal year of the Company., or, if applicable, such shorter respective periods as may then be required by the Commission for the filing by the Company of Quarterly Reports on Form 10-Q and Annual Reports on Form 10-K. (i) The Company, during During any period in which it the Company is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, or the Company is not exempt from such reporting requirements pursuant to and in compliance with Rule 12g3-2(b) under the Exchange Act, the Company shall provide to each holder of the Securities Senior Notes and to each prospective purchaser (as designated by such holder) of the SecuritiesSenior Notes, upon the request of such holder or prospective purchaser, any information required to be provided by Rule 144A(d)(4) under the Securities Act, if applicable. Any information provided by the Company pursuant to this Section 6(i) will not, at the date thereof, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If the Company is required to register under the Exchange Act, such reports filed in compliance with Rule 12g3-2(b) shall be sufficient information as required above. This covenant is intended to be for the benefit of the Purchaser, the holders of the SecuritiesSenior Notes, and the prospective purchasers designated by the Purchaser and such holders, from time to time, of the SecuritiesSenior Notes. (j) Other than as contemplated by this Purchase Agreement, The Company covenants and agrees with Purchaser that the Company will not, until one hundred eighty (180) days following the Closing Date, without the Purchaser’s prior written consentconsent of Purchaser, offer, sell, contract to sell, grant any option to purchase or otherwise dispose of, directly or indirectly, any Debt (as such term is defined in the Indenture) unless (i) the Company shall be in compliance with each of the covenants contained herein and in the Indenture immediately after the closing of any Securities transaction relating to such offer, sale, contract to sell, grant, purchase or other securities substantially similar to the Securities that would be integrated with the issuance of the Securities under the Securities Act such that the Securities would be required to be registered under the Securities Act or dispositions, (ii) any other securities convertible into, such Debt is Permitted Debt (as such term is defined in the Indenture) or exercisable or exchangeable for, any Securities or other securities substantially similar (iii) such Debt (x) shall be expressly subordinate by its terms to the Securities that would be integrated with Senior Notes and (y) shall not contain any covenants of the Securities under Company which are more restrictive than the Securities Act such that financial covenants contained in the Securities would be required to be registered under the Securities ActIndenture. (k) [Reserved]. (l) The Company will not identify any of the Indemnified Parties (as defined below) in a press release or any other public statement without the consent of such Indemnified Party. (ml) The Purchaser is granted shall have the right under this Purchase Agreement and the Indenture to request the substitution of new notes Senior Notes for all or a portion of the Securities Senior Notes held by the Purchaser (the “Replacement SecuritiesSenior Notes”). The Replacement Securities Senior Notes shall bear terms identical to the Securities Senior Notes with the sole exception of interest payment dates (and corresponding redemption date and maturity date), which will be specified by the Purchaser. In no event will the interest payment dates (and corresponding redemption date and maturity date) on the Replacement Securities Senior Notes vary by more than sixty (60) calendar days from the original interest payment dates (and corresponding redemption date and maturity date) under the SecuritiesSenior Notes. The Company agrees to cooperate with all reasonable requests of the Purchaser in connection with any of the foregoing; provided, provided that no action requested of the Company in connection with such cooperation shall materially increase the obligations or materially decrease the rights of the Company pursuant to such documents. (m) Notwithstanding anything to the contrary otherwise contained herein or in any other Operative Document, prior to earlier of (i) the date eighteen (18) months from the date hereof and (ii) the occurrence of a Change-of-Control (as defined in the Indenture), the Company shall not offer to issue any other unsecured Debt (as such term is defined in the Indenture) which ranks pari passu with the Senior Notes (including the Senior Notes or securities convertible into, or exercisable or exchangeable for the same) to any other Person, unless the Company shall first offer to Purchaser the opportunity to purchase such unsecured Debt, and shall first provide to Purchaser a written notice thereof stating the proposed terms and conditions (the “Offered Terms”). The Purchaser shall have the right to accept the Offered Terms by written notice to the Company given within ten (10) days after the Purchaser’s receipt of the Offered Terms. If the Purchaser does not accept the Offered Terms within such period, the Purchaser shall be deemed to have rejected the Offered Terms and the Company may consummate such issuance of unsecured Debt during the sixty (60) month period beginning on the date of the expiration of the applicable period; provided, that such issuance of unsecured Debt shall be consummated on substantially the same terms as the Offered Terms and shall otherwise be in accordance with the terms hereof, including Section 6(j). If such issuance of unsecured Debt is not consummated within such sixty (60) month period, the provisions of this Section 6(m) shall again apply in respect of any issuance of unsecured Debt which ranks pari passu with the Senior Notes whether made during such sixty (60) month period or thereafter. (n) On each of March 30, 2007, June 30, 2007 and either, at the Company’s option, September 30, 2007 or December 30, 2007, the Company shall deposit into the Interest Reserve Account an amount equal to the amount of interest paid with respect to the Senior Notes on such Interest Payment Date pursuant to Section 3.1(a) of the Indenture. The amounts on deposit in the Interest Reserve Account shall not be released to the Company until such time as the Company shall (i) have maintained a Fixed Charge Coverage Ratio (as defined in the Indenture) of not less than 2.0 to 1.0 as of the four (4) immediately preceding fiscal quarters in each case for, collectively, such quarter together with the preceding three (3) quarters and (ii) be in compliance with all other covenants contained herein and in the Indenture.