Common use of Representations and Warranties of Holdings Clause in Contracts

Representations and Warranties of Holdings. Holdings represents and warrants to, and agrees with, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as of the date hereof and as of any issue date of the Securities: (a) Each of Holdings and its Subsidiaries (as defined below) has been duly organized and is validly existing as a corporation or other form of entity in good standing under the laws of its state of organization, with the requisite power and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) This Letter Agreement has been duly and validly executed and delivered by Holdings, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms. (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. Holdings hereby warrants and represents to and warrants toagrees with Issuer and HNB that: a. Holdings is aware that, in reliance on certain exemptions therefrom, the Class D preferred securities have not been registered with the SEC or any state securities authority, and agrees withthat the Class D conversion shares have not been registered with the OCC. b. Holdings is purchasing the Class D preferred securities as an investment and not with a current view to resale thereof, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A but Holdings does intend to sell such securities to investors at some future date. c. Holdings is made as aware of the date hereof and as kind of any issue date of the Securities: (a) Each of Holdings and its Subsidiaries (as defined below) has been duly organized and is validly existing as a corporation or other form of entity in good standing under the laws of its state of organization, with the requisite power and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to information that would be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) This Letter Agreement has been duly and validly executed and delivered by Holdings, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms. (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result available in a breach or violation of, any of the terms or provisions of, or constitute a default registration statement filed under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933 or under the National Bank Act, 12 U.S.C. 1 et seq., and related national banking legislation. d. Holdings has had access to the same kind of information about the Issuer and HNB that would be available in such registration statements and to additional information necessary to verify the accuracy of such information. e. Holdings has such knowledge and experience in financial and business matters that it is able to evaluate the merits and risks of this investment and to bear the economic risks of this investment. f. Holdings understands that neither the Class D preferred securities nor the Class D conversion shares are at present publicly traded, that no market for them currently exists, and that there can be no assurance that an active and liquid trading market will develop at any time or continue for either the Class D preferred securities or the Class D conversion shares. g. Holdings shall indemnify and save harmless the Issuer and HNB, their respective officers, directors, promoters, incorporator, employees and agents from any and all liabilities, claims, demands, suits or other proceedings arising out of any breach or alleged breach of the foregoing warranties and representations. h. The certificates evidencing the Class D preferred securities, and if converted, the Class D conversion shares, shall bear the following legend in conspicuous type: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, as amended (the “Securities Act”) AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED. j. Holdings has received and reviewed copies of the Securities or the Common Stock issuable upon conversion express terms of the Series Class D Preferred Stock is required for the offer preferred securities and sale of the Securities to Investor in the manner contemplated hereinClass D conversion shares. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. As an inducement to the Stockholder to enter into this Agreement and to consummate the transactions contemplated hereby, Holdings represents and warrants toto the Stockholder that, and agrees with, Investor except as set forth in the Company Disclosure Documents (defined below. Each representation), warranty the following are true and agreement set forth in this Annex A is made correct as of the date hereof and as of any issue date of the SecuritiesClosing Date: (a) Each of Holdings and its Subsidiaries (as defined below) has been is a corporation duly organized and is organized, validly existing as a corporation or other form of entity and in good standing under the laws of its state the State of organization, with the requisite power and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policiesDelaware. (b) Holdings has the requisite corporate power and authority is authorized to enter intoissue 250,000,000 Holdings Shares, executeof which, deliver and perform its obligations under this Letter Agreement. Subject prior to the approval transactions contemplated by the Purchase Agreement, 125,629,043 shares are issued and outstanding. The outstanding Holdings Shares were duly authorized and, when issued, were validly issued, fully paid, non-assessable. None of the Series E Certificate Holdings Shares were issued in violation of Designations any preemptive or other right. Options to acquire 15,738,401 Holdings Shares (the "Holdings Options") are issued and outstanding. Other than the Holdings Options, and except as set forth in Schedule 5(b), Holdings is not a party to or bound by any contract or agreement which grants to any person or entity an option or right of first refusal or other right of any character to acquire at any time, or upon the Board happening of Directors any stated events, shares of capital stock or other securities of Holdings, whether or not presently issued or outstanding. Other than the Holdings andOptions, subject and except as set forth in Schedule 5(b), there is no outstanding right, subscription, warrant, call, option or other agreement of any kind to the filing issue, purchase or otherwise to receive from Holdings any of the Series D Certificate of Designations outstanding, the authorized but unissued, the unauthorized or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 treasury shares of the Delaware General Corporation Lawcapital stock or any other security of Holdings, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each there is no outstanding security of them any kind convertible or exchangeable into capital stock of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactionsHoldings. (c) This Letter Agreement has been duly and validly executed and delivered by Holdings, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings When issued in accordance with its terms. (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designationsterms and conditions hereof, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 all of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when Shares issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, will shall be duly and validly issued, fully paid and non-assessable. (d) Holdings has all requisite corporate power and authority to enter into and deliver this Agreement and to perform its obligations hereunder, and free has duly authorized the execution, delivery and clear performance of this Agreement by all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rightsnecessary corporate action. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have This Agreement has been duly and validly authorized andauthorized, when issued executed and delivered by Holdings and constitutes Holdings' legal, valid and binding obligation, enforceable in satisfaction accordance with its terms, except as enforceability is limited by (i) principles of equity that may restrict the Premium availability of specific performance and other equitable remedies (whether such enforceability is considered in a proceeding in equity or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessableat law), and free (ii) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer and clear of all taxes, liens, preemptive rights, other laws applicable to creditors' rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stockgenerally. (e) Except for the Securitiesrequirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, stock options as amended (the "HSR Act"), the execution, delivery and restricted stock performance of Holdings’ employees and directors and a Rights Offering (as defined in this Agreement by Holdings is not subject to the Series D Certificate jurisdiction, approval, notification of Designations) or consent of any governmental, regulatory or administrative agency, other than with respect to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable applicable state securities or other rights of any character whatsoever to blue sky laws for which Holdings is a party relating to issued the appropriate consents, approvals or unissued capital stock of Holdingsauthorizations have been obtained and the appropriate notices, filings, registrations or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rightsqualifications have been made. (f) All Except for the outstanding shares requirements of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessablethe HSR Act, and all outstanding shares except as set forth on Schedule 5(f), the execution, delivery and performance of capital stock of Holdings’ Subsidiaries are owned this Agreement by Holdings either directly will not violate (with or through wholly owned Subsidiaries free without the giving of notice or the lapse of time or both) or require any consent or approval, filing or notice under and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will not conflict with, or result in a the breach or violation of, termination of any of the terms or provisions provision of, or constitute a default under (with or without notice or lapse of time, or both)under, or result in the acceleration, termination, modification acceleration of the performance of the obligations of Holdings under Holdings' Certificate of Incorporation or cancellation of, By-laws or the creation of under any lien under, any material indenture, mortgage, deed of trust, loan agreement lease, license agreement, contract, instrument or other agreement agreement, or instrument any law, order, judgment or decree to which Holdings or any of its Subsidiaries is a party or by which Holdings is bound. (g) There is no material litigation, arbitration or any of its Subsidiaries is bound other proceeding or governmental investigation pending or, to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws best knowledge of Holdings, threatened against Holdings. There are no material actions pending or, to the best knowledge of Holdings, threatened against Holdings by any governmental or any quasi-governmental agency with respect to compliance by Holdings with applicable laws, ordinances or regulations. To the best knowledge of the equivalent organizational documents of any of its SubsidiariesHoldings, or (iii) will result in any violation ofthere is no outstanding execution, or any termination or material impairment of any rights underorder, any statute, license, authorizationwrit, injunction, judgment, order, decree, rule judgment or regulation decree of any court, government or governmental agency or body, or arbitration or similar tribunal having jurisdiction over against Holdings or any of its Subsidiaries or any of their respective propertiesto which Holdings is subject. (h) No consentEach document filed by Atrium since January 1, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 1999 with the Securities and Exchange Commission (the “SEC”"Company Disclosure Documents") as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements any amendments or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will besupplements thereto, when considered as a wholefiled, complete and correct complied in all material respects as with the applicable requirements of the date on which Securities and Exchange Act of 1934, as amended. At the time of the filing of any Company Disclosure Document and at the time of any distribution thereof, such Information was or will be delivered and does not, or will Company Disclosure Document did not when delivered, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The representations and warranties contained therein in this Section 5(h) do not misleading apply to statements or omissions included in the Company Disclosure Documents based upon information furnished to Atrium in writing by third parties specifically for use therein. Holdings has no actual knowledge of any information furnished to Atrium by a third party in writing for use in the Company Disclosure Documents containing any untrue statement of a material fact or omitting a material fact necessary in order to make the statements made in the Company Disclosure Documents, in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of made, not misleading. (i) assumptionsAll inventory of Atrium as set forth in the consolidated balance sheet dated as of June 30, methods 2000 (the "Balance Sheet") consisted of, and tests all inventory of Atrium as of the Closing Date will consist of, raw materials, supplies, work-in-process, goods in transit and finished goods of a quality and quantity usable or salable in the ordinary course of business of Atrium and its subsidiaries. The value at which are believed by inventories were reflected in the Balance Sheet was the lower of cost or market value adjusted to conform to LIFO inventory valuation principles, all in accordance with United States generally accepted accounting principles applied on a basis consistent with that of the preceding fiscal year. (j) Except as set forth in Schedule 5(j), since January 1, 1999, Holdings and each of its subsidiaries have conducted their respective businesses only in the ordinary course consistent with past practice, without extraordinary or unusual transactions, and none of them has suffered any change, event or condition that individually or in the aggregate has had (or could reasonably be expected to have) a material adverse effect upon the business, operations, properties, assets, liabilities, prospects or financial condition of Holdings and its Subsidiaries to be reasonable and subsidiaries taken as a whole. (iik) information believed by Except as set forth in Schedule 5(k), Holdings and each of its Subsidiaries to have been accurate based upon the information available to Holdings subsidiaries, and its Subsidiaries at the time such projections were furnished to Investortheir respective properties and operations, are in compliance in all material respects with all applicable federal, state, local and foreign laws, ordinances, regulations, orders, judgments, injunctions, awards, decrees and other requirements of any governmental or quasi-governmental body, court or arbitrator. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None There are no liabilities or obligations of Holdings or any of its Subsidiaries hassubsidiaries, directly either accrued, absolute, contingent or through any agentotherwise, soldincluding, offered for sale, solicited offers to buy or otherwise negotiated in respect ofbut not limited to, any “security” liabilities for taxes due or to become due, except: (as defined i) to the extent reflected in the Securities ActBalance Sheet or the Holdings Balance Sheet (defined below) and not heretofore paid or discharged, (ii) those incurred, consistently with past business practice, in or as a result of the normal and ordinary course of business since December 31, 1999, (iii) liabilities or obligations specifically disclosed in the Schedules to this Agreement or in the Company Disclosure Documents; and (iv) liabilities or obligations not required by GAAP to be reflected in the Balance Sheet, the Holdings Balance Sheet or in Atrium's financial statements that are part of the Company Disclosure Documents and of which Holdings has no knowledge. (m) After giving effect to the consummation of the transactions contemplated by this Agreement and the Purchase Agreement, Holdings and its subsidiaries are solvent. For purposes of this Section 5(m), "solvent" means that the sum of the value of the person's or entity's assets, at both fair value or fair saleable value, exceeds its indebtedness and other probable liabilities (including contingent liabilities); "fair value" means the value which would be realized in an exchange or series of exchanges between a willing buyer and a willing seller, within a commercially reasonable period of time, neither being under compulsion, each having reasonable knowledge of all relevant facts, and assuming the retention of all operating assets within Holdings and its subsidiaries and continuation of the operations as a going concern; and "fair saleable value" means the value which would be realized from an interested purchaser aware of all relevant information relating to the assets or group of assets being sold and who is willing to purchase under ordinary selling conditions in an existing and not theoretical market if the assets or group of assets are disposed of within a period of six (6) months to one (1) year. The cash flow from the operations of Holdings and its subsidiaries, after taking into account all other anticipated uses of the cash, will be integrated sufficient to provide cash necessary to repay their indebtedness. In consummating the transactions contemplated by this Agreement, Holdings and its subsidiaries do not intend to make any transfer or incur any obligations, with the sale intent to disturb, delay, hinder or defraud either present or future creditors. Upon the consummation of the shares of Securities transactions contemplated by this Agreement, Holdings and its subsidiaries will have sufficient capital with which to conduct their present or proposed businesses and their property will not constitute unreasonably small capital with which to conduct their present or proposed businesses, and will not engage in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investorbusiness or transaction for which they have unreasonably small capital.

Representations and Warranties of Holdings. Holdings (including Holdings and its subsidiaries and affiliated companies) hereby represents and warrants to(which representations and warranties shall survive the Closing, except for paragraphs (f) and agrees with, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as (i) below which shall survive only for a period of two years following the date hereof and as of any issue date of the SecuritiesClosing) to KRUG xxxt: (a) Each of Holdings and its Subsidiaries (as defined below) has been it is a corporation duly organized and is organized, validly existing as a corporation or other form of entity and in good standing under the laws of its state the State of organizationDelaware, with the requisite power and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the requisite corporate full power and authority to enter into, execute, deliver into this Agreement and perform its obligations under hereunder; (b) the execution and delivery of this Letter Agreement. Subject to Agreement and each document or instrument in furtherance thereof and the approval consummation of the Series E Certificate of Designations this transaction by the Holdings has been duly authorized by its Board of Directors and/or shareholders, and no further authorization is necessary on the part of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions.Holdings; (c) This Letter this Agreement has been duly and validly executed and delivered by Holdings(including the Exhibits hereto) constitutes the legal, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms., except as may be limited by the Enforceability Exceptions; (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors shares of Holdings under the Delaware General Corporation LawPreferred Stock, the upon issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicableKRUG xxxeunder, will be duly and authorized, validly issued, fully paid and non-assessable, and free and clear nonassessable shares of all taxes, liens, preemptive Holdings capital stock having the rights, rights preferences and privileges set forth in the Certificate of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock.Designation; (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of neither the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and nor the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of hereby, will violate any change in ownership of Holdings) (i) will conflict withconstitution, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, licenseregulation, authorizationrule, injunction, judgment, order, decree, rule ruling, charge or regulation other restriction of any courtgovernment, governmental agency or bodycourt to which Holdings is subject or any provisions of Holdings' charter or bylaws or any agreement or contract to which Holdings is bound; (f) Holdings has disclosed to KRUG xxx material matters relating to Holdings and its business as of the Closing Date, or arbitration including without limitation Holdings' financial condition, business, operations, and pending and prospective extraordinary transactions (including, without limitation, investments, sales of significant assets or similar tribunal having jurisdiction over transactions, acquisitions, significant financing transactions, and agreements other than in the ordinary course of business with significant vendors, suppliers or customers), except as the disclosure of the specific details thereof to KRUG xxx be limited by agreements of confidentiality or non-disclosure, in which case Holdings shall have disclosed the general nature of any such material matters; the Private Placement Memorandum (referenced above) does not misstate any material fact or omit to state any fact necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading; other than as disclosed pursuant to this paragraph, there have been no discussions initiated or held by or on behalf of Holdings or Wyle with any third parties contemplating a joint venture or strategic alliance other than normal proposals and agreements with such third parties in the ordinary course of its Subsidiaries the Holdings' business, none of which is viewed by the management of Wyle or any of their respective properties.Holdings as material; (hg) No consenton the Closing Date, approval, authorization, order, registration or qualification after giving effect to the Closing and the occurrence of or with any court or governmental agency or body having jurisdiction over the Financing Transactions: (I) the fair value and present fair saleable value of Holdings' assets would exceed Holdings' stated liabilities and identified contingent liabilities; (II) Holdings or any of will be able to pay its Subsidiaries or any of their respective properties is required debts as they become absolute and mature; (III) the capital remaining in Holdings after the transactions would not be unreasonably small for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and business in which it is proposed to be conducted following the consummation of the transactions contemplated herein by this Agreement; (including compliance by Investor with its obligations hereunder IV) this Agreement and including as a result of any change in ownership the transactions contemplated hereby do not and will not impair the capital of Holdings), except for ; and (V) Holdings will not be "insolvent" within the filing meaning Section 101(32) of the Series D Certificate United States Bankruptcy Code; (h) neither Holdings nor any of Designations its officers, employees or Series E Certificate of Designationsagents have incurred any obligation or liability for brokerage or finder's fees, if and as applicable, agent's commissions or other similar payment in connection with this Agreement or the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law.transactions contemplated hereby; and (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities no representation or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements warranty of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-Kin this Agreement omits, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1no notice given pursuant to Section 7.1 hereof will omit, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading herein and therein, in light of the circumstances under in which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptionsmade, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investornot misleading. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. Holdings hereby warrants and represents to and warrants toagrees with Issuer and HNB that: a. Holdings is aware that, in reliance on certain exemptions therefrom, the Class C preferred securities have not yet been registered with the SEC or any state securities authority, and agrees withthat the Class C conversion shares have not yet been registered with the OCC. b. Holdings is purchasing the Class C preferred securities as a short term investment with a view to resale thereof, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A but only after SEC registration is made as obtained for such securities. c. Holdings is aware of the date hereof and as kind of any issue date of the Securities: (a) Each of Holdings and its Subsidiaries (as defined below) has been duly organized and is validly existing as a corporation or other form of entity in good standing under the laws of its state of organization, with the requisite power and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to information that would be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) This Letter Agreement has been duly and validly executed and delivered by Holdings, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms. (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result available in a breach or violation of, any of the terms or provisions of, or constitute a default registration statement filed under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933 or under the National Bank Act, 12 U.S.C. 1 et seq., and related national banking legislation. d. Holdings has had access to the same kind of information about the Issuer and HNB that would be available in such registration statements and to additional information necessary to verify the accuracy of such information. e. Holdings has such knowledge and experience in financial and business matters that it is able to evaluate the merits and risks of this investment and to bear the economic risks of this investment. f. Holdings understands that neither the Class C preferred securities nor the Class C conversion shares are at present publicly traded, that no market for them currently exists, and that there can be no assurance that an active and liquid trading market will develop at any time or continue for either the Class C preferred securities or the Class C conversion shares. g. Holdings shall indemnify and save harmless the Issuer and HNB, their respective officers, directors, promoters, incorporator, employees and agents from any and all liabilities, claims, demands, suits or other proceedings arising out of any breach or alleged breach of the foregoing warranties and representations. h. The certificates evidencing the Class C preferred securities shall bear the following legend in conspicuous type: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, as amended (the “Securities Act”) AS AMENDED, OR REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR QUALIFICATION WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED. j. Holdings has received and reviewed copies of the Securities or the Common Stock issuable upon conversion express terms of the Series D Preferred Stock is required for the offer Class C preferred securities and sale of the Securities to Investor in the manner contemplated hereinClass C conversion shares. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. Holdings represents and warrants to, to Bay Harbour and agrees with, Investor Bay Harbour Parent that as set forth below. Each representation, warranty of the Effective Date and agreement set forth in this Annex A is made as of the date hereof and as of any issue date of the SecuritiesClosing: (a) Each of Holdings and its Subsidiaries (as defined below) has been duly organized and is validly existing as a corporation or other form of entity in good standing under the laws of its state of organization, with the requisite power and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the all requisite corporate limited liability company power and authority to enter into, execute, deliver and perform its obligations under into this Letter Agreement. Subject to the approval The consummation of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware Merger pursuant to Section 103 this Agreement will not violate or conflict with any agreement or instrument binding on Holdings or to which it or any of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) properties is subject or any applicable law. This Letter Agreement has been duly and validly executed and delivered by Holdings, Holdings and constitutes a the legal, valid and binding obligation of Holdings, Holdings enforceable against Holdings in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally and by general equitable principles. (b) Except in connection with the filing and recordation of the Certificate of Merger as required by the DGCL, no consent, approval, authorization or order of, or registration, qualification or filing with, any court, regulatory authority, governmental body or any other third party, other than the consent of SkyTerra as sole member of Holdings, as has been heretofore obtained is required for the execution, delivery and performance by Holdings of this Agreement or the consummation by Holdings of the transactions contemplated hereby, except filings pursuant to the Registration Rights Agreement under the Securities Act. (c) Holdings is not under the jurisdiction of a court in a Title 11 or similar case within the meaning of Section 368(a)(3)(A) of the Code. (d) Subject Holdings believes it has received all the information it considers necessary or appropriate for deciding whether to filing engage in the Series D Certificate of Designations or Series E Certificate of Designations, if Merger. Holdings further represents that it has had an opportunity to ask questions and as applicable, with receive answers from Bay Harbour regarding the Secretary of State of Delaware pursuant to Section 103 terms and conditions of the Delaware General Corporation Law Bay Harbour Interest and subject the business and financial condition of MSV Investors and to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant obtain additional information (to the terms extent Bay Harbour possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of this Letter Agreement and the Series D Certificate of Designations any information furnished to it or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rightswhich it had access. The shares foregoing, however, does not limit or modify the representations or warranties of common stock of Holdings (Bay Harbour or Bay Harbour Parent in this Agreement or the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock right of Holdings or pursuant SkyTerra to which Holdings is rely upon such representations or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rightswarranties. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. Holdings represents and warrants to, and agrees with, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as to each of the date hereof and Stockholders as of any issue date of the Securitiesfollows: (a) Each of Holdings and its Subsidiaries (as defined below) has been is a corporation duly organized and is organized, validly existing as a corporation or other form of entity and in good standing under the laws of its state the State of organization, with the requisite power Delaware and authority is duly licensed or qualified to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of do business and is in good standing under the laws of in each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualificationreal property, except to the extent where the failure so to be so licensed or qualified or be in good standing has not had or could not reasonably be expected to havewould not, individually or in the aggregate, a material adverse effect materially adversely affect it. Holdings has the corporate power and authority to own and hold its properties and to carry on the businessits business as currently conducted and to execute, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings deliver and its Subsidiaries taken as a whole or on the ability of Holdings to consummate perform this Agreement and the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policieshereby. (b) Holdings has the requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, The execution, delivery and performance by each of them Holdings of this Letter AgreementAgreement has been duly authorized by all requisite corporate action and will not violate any provision of law, including having obtained any order of any court or other agency of government, the approval Certificate of the boards of directors Incorporation of Holdings andor any provision of any indenture, where required, such Subsidiaries and the approval of the special committee of the board of directors of agreement or other instrument by which Holdings formed in connection with this Letter Agreement and related transactionsis bound or affected. (c) This Letter Agreement has been duly The Holdings Class A Common and validly executed and delivered by Holdings, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings Series A Preferred to be issued in accordance with the terms hereof have been duly authorized and, when issued and delivered in accordance with this Agreement, will be validly issued and outstanding, fully paid and nonassessable shares of Holdings Class A Common and Holdings Series A Preferred. The shares of Holdings Class A Common issuable upon conversion of the Holdings Series A Preferred, when so issued, will be duly authorized, validly issued and outstanding, fully paid and nonassessable shares of Holdings Class A Common. The issuance, sale and delivery of the Holdings Class A Common and Holdings Series A Preferred hereunder is not subject to any preemptive rights of stockholders of Holdings or to any right of first refusal or other similar right in favor of any person which has not been waived in its termsentirety. (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 As of the Delaware General Corporation Law and subject to approval of date hereof, the Series E Certificate of Designations by the Board of Directors authorized capital stock of Holdings under consists of 100 shares of Common Stock of which no shares have issued. Except as contemplated or permitted by this Agreement, the Delaware General Corporation Law, Credit Agreement or in connection with the issuance of the Securities has been duly and validly authorized andSenior Notes, if and when issued pursuant (A) no subscription, warrant, option, convertible security or other right (contingent or other) to the terms of this Letter Agreement and the Series D Certificate of Designations purchase or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The acquire any shares of common stock any class of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings is authorized or pursuant to which outstanding, (B) there is no commitment of Holdings is or may become bound to issue any shares, warrants, options or grant additional other such rights or to distribute to holders of any class of its capital stock any evidences of indebtedness or assets and (C) Holdings has no obligation (contingent or other) to purchase, redeem or otherwise acquire any shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, any interest therein or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly pay any dividend or through wholly owned Subsidiaries free and clear of make any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated distribution in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investorthereof.

Representations and Warranties of Holdings. Holdings represents and warrants to, and agrees with, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as of the date hereof and as of any issue date of the Securitiesto AWA that: (a) Each of Holdings and its Subsidiaries (as defined below) has been is a corporation duly organized and is organized, validly existing as a corporation or other form of entity and in good standing under the laws of its state the State of organization, with the requisite power Delaware and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the all requisite corporate power and authority to enter into, execute, execute and deliver this Agreement and perform its obligations under to consummate the transactions contemplated hereby; (b) the execution and delivery by Holdings of this Letter Agreement. Subject to Agreement and the approval consummation of the Series E Certificate of Designations transactions contemplated hereby have been duly authorized by the Board of Directors of Holdings and, subject to and no other corporate proceedings or approvals on the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors part of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with are necessary to authorize this Letter Agreement and related transactions.Agreement; (c) This Letter this Agreement has been duly and validly executed and delivered by Holdings, Holdings and constitutes a the legal, valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms., except as such enforcement may be limited by applicable bankruptcy, (d) Subject except for routine filings, no consents, approvals or authorizations of any governmental authority and no notifications, filings or registrations to filing or with any governmental authority or any other person or entity is or will be necessary for the Series D Certificate of Designations or Series E Certificate of Designations, if valid execution and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations delivery by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and Agreement, or the Series D Certificate of Designations or Series E Certificate of Designationsenforceability hereof, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock other than those which have been duly obtained or made and validly authorized and, when issued are in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid full force and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock.effect; (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof Agreement and the consummation of the transactions contemplated herein (including compliance hereby do not and shall not, by Investor with its obligations hereunder and including as a result the lapse of any change in ownership time, the giving of Holdings) notice or otherwise, (i) will conflict withconstitute a violation of any law, statute, rule or result in regulation, (ii) constitute a breach or violation of, of any provision contained in its Certificate of the terms Incorporation or provisions ofBylaws or (iii) constitute a breach of any provision contained in, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indentureconsent, mortgageapproval or authorization of any governmental authority or any writ, deed injunction, order, judgment or decree of trust, loan any governmental authority or any contract or agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries assets and properties is bound or affected, other than such violations, breaches and defaults which would not have a material adverse effect on Holdings and its subsidiaries, taken as a whole; and (f) the Option Shares delivered to which AWA upon exercise of any of the property or assets Options will be duly authorized, validly issued, fully paid and nonassessable and free of Holdings or any of its Subsidiaries is subjectpreemptive rights and all liens, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information security interests and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investorencumbrances. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. Holdings hereby represents and warrants to, and agrees with, to the Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as of the date hereof and as of any issue date of the Securitiesfollows: (a) Each of Holdings and its Subsidiaries (as defined below) has been duly organized and is validly existing as a corporation or other form of entity in good standing under the laws of its state the State of organization, with the Delaware and has all requisite corporate power and authority to own its properties and conduct carry on its business as currently presently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the all requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) This Letter Agreement has been duly and validly authorized, executed and delivered by Holdings, and constitutes a valid all legally required corporate proceedings by Holdings in connection with the execution and binding obligation delivery thereof have been taken. (c) The authorized capital stock of Holdings consists of [_________] shares of all classes of stock consisting of (i) [_________] shares of Common Stock, of which [_________] shares are issued and outstanding and [_______] shares are reserved for issuance pursuant to the Holdings’ 2009 Stock Incentive Plan (the “2009 Plan”) and (ii) [_______] shares of Holdings’ Preferred Stock of which (x) [_______] shares are Holdings’ Series A Redeemable Preferred Stock, par value [$0.001] per share, all of which are issued and outstanding and (y) [_______] shares are available for designation in one or more classes or series. Except (i) as may have been or may be issued under the 2009 Plan (including any agreements or instruments implementing the issuances therein disclosed, as the same may be amended from time to time) and (ii) as described on Schedule 2, there are no outstanding subscriptions, options, rights, warrants, convertible securities or other agreements, or calls, demands or commitments of any kind relating to the issuance, sale or transfer of any capital stock or other equity securities of Holdings, enforceable against Holdings in accordance with its terms. (d) Subject to filing the Series D Certificate whether directly or upon exercise or conversion of Designations other securities or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms and conditions of this Letter Agreement any instrument evidencing indebtedness of Holdings. The Shares, when issued and delivered to the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicableInvestor, will be duly and validly issuedauthorized, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (ed) Except for The execution, delivery and performance by Holdings of this Agreement, including the Securitiesissuance and delivery of the Shares to the Investor, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering will not (as defined in the Series D Certificate of Designationsi) require Holdings to all shareholders of Holdingsobtain any consent, there are no outstanding subscription rightsapproval, options, warrants, convertible or exchangeable securities authorization or other rights order of, or to make any filing, registration or qualification with any court, regulatory body, administrative agency or other governmental body (except such as may have previously been obtained, filed or made or are permitted to be, and will be, filed or made promptly following the date hereof), (ii) conflict with or constitute a violation of any character whatsoever to which Holdings is a party relating to issued provision of the Charter or unissued capital stock Bylaws of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights(iii) breach, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both)under, or result in the accelerationimposition of a lien or encumbrance on any material properties of Holdings pursuant to any bond, terminationdebenture, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement note or other agreement or instrument to which evidence of indebtedness of Holdings or any of its Subsidiaries indenture or other material agreement to which it is a party or by which Holdings or any of its Subsidiaries it is bound or to which any of the material property or assets of Holdings or any of its Subsidiaries is may be subject, (ii) will result ; provided that the representations in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. clause (i) No registration under of this paragraph are made in reliance upon the Securities Act of 1933, as amended (the “Securities Act”) representations and warranties of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated hereinSection 4 of this Agreement. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. Holdings hereby represents and warrants to, and agrees with, Investor to Mammoth as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as of the date hereof and as of any issue date of the Securitiesfollows: (a) Each of a. Holdings and its Subsidiaries (as defined below) has been is duly organized and is organized, validly existing as a corporation or other form of entity and in good standing as a limited liability company under the laws of its Delaware, the state of its organization, with . b. Holdings has the requisite power and authority and capacity to own its properties execute and conduct its business as currently conducted. Each of Holdings deliver this Agreement, and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreementhereby. For the purposes The execution and delivery of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% Agreement and the consummation by Holdings of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations transactions contemplated hereby have been duly authorized by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate limited liability company action required for on the due authorization, execution, delivery and performance by each part of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) Holdings. This Letter Agreement has been duly and validly executed and delivered by Holdings, Holdings and constitutes a valid and binding obligation of Holdings, Holdings enforceable against Holdings in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance and other similar laws affecting the enforcement of creditors’ rights generally and general equitable principles. (d) Subject to filing c. Holdings is the Series D Certificate record and beneficial owner of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 all of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation LawCompany Equity Interests, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rightsoptions, rights claims, charges, pledges, security interests or other encumbrances of first refusalany kind, subscription and similar rightsother than those arising under applicable securities laws. The shares of common stock of Holdings (Upon the “Common Stock”) issuable in satisfaction consummation of the Premium and initially issuable upon conversion transactions contemplated by this Agreement, Mammoth shall own all of the Series D Preferred Stock have been duly and validly authorized andCompany Equity Interests, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrantsclaims, convertible or exchangeable securities charges, pledges, security interests or other encumbrances of any kind, other than those arising under applicable securities laws. The Company Equity Interests set forth on Schedule I hereto constitute all of the equity interests of any kind whatsoever in the Companies held by Holdings. Holdings holds no options, warrants or rights of any character whatsoever kind to which Holdings is a party relating to issued or unissued capital stock of Holdings, or acquire any commitments equity interests of any character kind whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rightsin any Company. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly d. The execution, delivery and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery performance by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof Agreement and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder hereby do not and including as a result of any change in ownership of Holdings) (i) will conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under not (with or without notice or the giving of notice, the lapse of time, or both)) result in a violation or breach of, conflict with, cause increased liability or fees, or result in the accelerationrequire approval, terminationconsent or authorization under (a) any laws, modification rules, regulations or cancellation of, orders applicable to Holdings or the creation of (b) any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument contract to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is properties or assets may be bound or to which affected. e. Holdings is an “accredited investor,” in that Holdings: (i) is any organization described in Section 501(c)(3) of the property Internal Revenue Code of 1986, as amended, corporation, Massachusetts or similar business trust, or partnership, not formed for the specific purpose of acquiring the securities offered, with total assets in excess of Holdings or any of its Subsidiaries is subject, $5,000,000; (ii) will result is an entity in any violation which all of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, equity owners are accredited investors; or (iii) will result otherwise qualifies as an “accredited investor”, as such term is defined in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series Regulation D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) ). Holdings is acquiring the Mammoth Common Units for its own account and not as nominee or agent for any other person or entity and with no intention of distributing or reselling such securities in any transaction that would be in violation of the Securities or the Common Stock issuable upon conversion securities laws of the Series D Preferred Stock is required for the offer and sale United States of America or any state thereof. Holdings acknowledges that none of the Securities Mammoth Common Units issued to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with hereunder are registered under the Securities Act and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in there can be no assurance that such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to Mammoth Common Units will ever be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances registered under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) , that is such Mammoth Common Units are “restricted securities” under Rule 144 promulgated under the Securities Act, and that such Mammoth Common Units may not be transferred or will be integrated with the sale of the shares of Securities in a manner that would require assigned without registration under the Securities Act and all applicable state securities laws or an exemption therefrom. f. Holdings and its investment and financial advisors have such knowledge and experience in financial and business matters so as to be able to evaluate the merits and risks of an investment in Mammoth, and to make an informed investment decision with respect thereto. Holdings acknowledges that, except as set forth in Section 5 hereof, neither Mammoth nor the sale General Partner has made any representations or warranties, oral or otherwise, concerning Mammoth or the Mammoth Common Units. In acquiring the Mammoth Common Units hereunder, Holdings is not relying upon any information, other than the results of its own or its representative’s independent review of Mammoth and the shares of Securities to InvestorMammoth Common Units. Holdings acknowledges and understands that Mammoth is a new entity with no operating history.

Representations and Warranties of Holdings. Holdings represents and warrants to, and agrees with, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as of the date hereof and as of any issue date of the Securities: (a) Each of Holdings and its Subsidiaries (as defined below) has been duly organized and is validly existing as a corporation or other form of entity in good standing under the laws of its state of organization, with the requisite power and authority to own its properties and conduct its business as currently conducted. Each of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “"Subsidiary” " of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business and policies. (b) Holdings has the requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) This Letter Agreement has been duly and validly executed and delivered by Holdings, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms. (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid and nonassessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; and the Board of Directors of Holdings has duly and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of the Premium and upon conversion of the Series D Preferred Stock. (e) Except for the Securities, stock options and restricted stock of Holdings’ employees and directors and a Rights Offering (as defined in the Series D Certificate of Designations) to all shareholders of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which Holdings is a party relating to issued or unissued capital stock of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant to which Holdings is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investor.

Representations and Warranties of Holdings. Holdings represents HOLDINGS, MIDSTREAM AND GP represent and warrants towarrant to MLP as follows: 4.1 Organization, Good Standing, and agrees with, Investor as set forth below. Each representation, warranty and agreement set forth in this Annex A is made as of the date hereof and as of any issue date of the Securities:Authority. (a) Each of Holdings and its Subsidiaries (as defined below) has been HOLDINGS is a limited liability company duly organized and is formed, validly existing as a corporation or other form of entity and in good standing under the laws Laws of its state the State of organization, with Delaware. The execution and delivery of this Agreement and the requisite power other Transaction Documents to which HOLDINGS is Project Alamo – Execution Version a party and authority to own its properties and conduct its business as currently conducted. Each the consummation by HOLDINGS of Holdings and its Subsidiaries has been duly qualified as a foreign corporation or other form of entity for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, except to the extent the failure to be so qualified or be in good standing has not had or could not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Holdings and its Subsidiaries taken as a whole or on the ability of Holdings to consummate the transactions contemplated by this Letter Agreement. For the purposes of this Letter Agreement, a “Subsidiary” of any person means, with respect to such person, any corporation, partnership, joint venture or other legal entity of which such person (either alone or through or together with any other subsidiary) owns, directly or indirectly, more than 50% of the stock or other equity interests, has the power to elect a majority of the board of directors or similar governing body, or has the power to direct the business herein and policies. (b) Holdings has the requisite corporate power and authority to enter into, execute, deliver and perform its obligations under this Letter Agreement. Subject to the approval of the Series E Certificate of Designations by the Board of Directors of Holdings and, subject to the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law, Holdings and its Subsidiaries have taken all necessary corporate action required for the due authorization, execution, delivery and performance by each of them of this Letter Agreement, including having obtained the approval of the boards of directors of Holdings and, where required, such Subsidiaries and the approval of the special committee of the board of directors of Holdings formed in connection with this Letter Agreement and related transactions. (c) This Letter Agreement has been duly and validly executed and delivered by Holdings, and constitutes a valid and binding obligation of Holdings, enforceable against Holdings in accordance with its terms. (d) Subject to filing the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law and subject to approval of the Series E Certificate of Designations by the Board of Directors of Holdings under the Delaware General Corporation Law, the issuance of the Securities has been duly and validly authorized and, if and when issued pursuant to the terms of this Letter Agreement and the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, will be duly and validly issued, fully paid and non-assessable, and free and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights. The shares of common stock of Holdings (the “Common Stock”) issuable in satisfaction of the Premium and initially issuable upon conversion of the Series D Preferred Stock therein have been duly and validly authorized and, when issued in satisfaction of the Premium or when issued upon conversion of the Series D Preferred Stock, will be validly issued, fully paid by all necessary limited liability company action by HOLDINGS. This Agreement has been duly executed and nonassessable, delivered by HOLDINGS. HOLDINGS has all requisite limited liability company power and free authority to enter into and clear of all taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights; perform this Agreement and the Board of Directors of Holdings has duly other Transaction Documents to which it is a party, to perform its obligations hereunder and validly adopted resolutions reserving such shares of Common Stock for issuance in satisfaction of thereunder and to carry out the Premium transactions contemplated herein and upon conversion of the Series D Preferred Stocktherein. (eb) Except for The JV is a general partnership duly formed and validly existing under the SecuritiesLaws of the State of Delaware. Each Entity is a limited liability company duly formed, stock options validly existing and restricted stock in good standing under the Laws of Holdings’ employees and directors and a Rights Offering (as defined Delaware or in the Series D Certificate case of Designations) XXXX/XXXXX, a general partnership duly formed, validly existing and in good standing under the Laws of Texas, and each Entity has all requisite limited liability company power and authority, or in the case of XXXX/XXXXX partnership power and authority, to all shareholders own or otherwise hold and operate its assets. The execution and delivery of Holdings, there are no outstanding subscription rights, options, warrants, convertible or exchangeable securities or other rights of any character whatsoever the Transaction Documents to which Holdings the JV is a party relating to issued or unissued capital stock and the consummation by the JV of Holdings, or any commitments of any character whatsoever relating to issued or unissued capital stock of Holdings or pursuant the transactions contemplated herein and therein to which Holdings it is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (f) All the outstanding shares of capital stock of each Subsidiary of Holdings a party have been duly and validly authorized by all necessary general partnership action by the JV and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of Holdings’ Subsidiaries are owned by Holdings either directly or through wholly owned Subsidiaries free and clear of any taxes, liens, preemptive rights, rights of first refusal, subscription and similar rights (except for any liens that have been or may be granted to lenders in accordance with the Credit Agreements and the Revolver), and there are no outstanding options, warrants, convertible or exchangeable securities or other rights of any character whatsoever to which any Subsidiary is a party relating to issued or unissued capital stock of such Subsidiary, or any commitments of any character whatsoever relating to issued or unissued capital stock of such Subsidiary or pursuant to which such Subsidiary is or may become bound to issue or grant additional shares of its capital stock or related subscription rights, options, warrants, convertible or exchangeable securities or other rights, or to grant preemptive rights. (g) None on behalf of the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings) (i) will conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration, termination, modification or cancellation of, or the creation of any lien under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its Subsidiaries is a party or by which Holdings or any of its Subsidiaries is bound or to which any of the property or assets of Holdings or any of its Subsidiaries is subject, (ii) will result in any violation of the provisions of the certificate of incorporation or by-laws of Holdings, or any of the equivalent organizational documents of any of its Subsidiaries, or (iii) will result in any violation of, or any termination or material impairment of any rights under, any statute, license, authorization, injunction, judgment, order, decree, rule or regulation of any court, governmental agency or body, or arbitration or similar tribunal having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties. (h) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over Holdings or any of its Subsidiaries or any of their respective properties is required for the execution and delivery by Holdings of this Letter Agreement, the performance of and compliance by Holdings or any of its Subsidiaries with all of the provisions hereof and the consummation of the transactions contemplated herein (including compliance by Investor with its obligations hereunder and including as a result of any change in ownership of Holdings), except for the filing of the Series D Certificate of Designations or Series E Certificate of Designations, if and as applicable, with the Secretary of State of Delaware pursuant to Section 103 of the Delaware General Corporation Law. (i) No registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Securities or the Common Stock issuable upon conversion of the Series D Preferred Stock is required for the offer and sale of the Securities to Investor in the manner contemplated herein. (j) The audited consolidated financial statements of Holdings as of and for the year ended December 31, 2006 and filed on April 2, 2007 with the Securities and Exchange Commission (the “SEC”) as part of Holdings’ annual report on Form 10-K, and the unaudited consolidated financial statements of Holdings as of and for the three months ended April 1, 2007, the six months ended July 1, 2007 and the nine months ended September 30, 2007 and filed with the SEC on May 14, 2007, August 10, 2007 and November 13, 2007, respectively, as part of Holdings’ quarterly reports on Form 10-Q present fairly in all material respects, in each case together with the related notes, the financial position of Holdings and its consolidated Subsidiaries at the dates indicated and, to the extent included in such reports, the statements of operations, stockholders’ equity and cash flows of Holdings and its consolidated Subsidiaries for the periods specified, except that the unaudited financial statements are subject to normal and recurring year-end adjustments that are not expected to be material in amount; such financial statements have been prepared in conformity with generally accepted accounting principles in the United States, except as otherwise noted in such financial statements or related notes, applied on a consistent basis throughout the periods involved and with past practices, and in conformity with the rules and regulations of the SEC. (k) All written information and other materials concerning Holdings and its Subsidiaries (the “Information”) which has been, or is hereafter, prepared by, or on behalf of, Holdings and delivered to Investor is, or when delivered will be, when considered as a whole, complete and correct in all material respects as of the date on which such Information was or will be delivered and does not, or will not when delivered, contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made. To the extent that any such Information contains projections, such projections at the time they were or will be delivered to Investor were or will be prepared in good faith on the basis of (i) assumptions, methods and tests which are believed by Holdings and its Subsidiaries to be reasonable and (ii) information believed by Holdings and its Subsidiaries to have been accurate based upon the information available to Holdings and its Subsidiaries at the time such projections were furnished to Investor. (l) Holdings is not and, after giving effect to the sale of the Securities and the application of the proceeds thereof, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended. (m) None of Holdings or any of its Subsidiaries has, directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any “security” Entities (as defined in the Securities Act) that is or will be integrated with the sale of the shares of Securities in a manner that would require registration under the Securities Act of the sale of the shares of Securities to Investorcase may be).