Common use of Waiver and Consent Clause in Contracts

Waiver and Consent. Each of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion and Allocation Rights with respect to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.

Waiver and Consent. Each of the StockholdersCompany, in its capacity as sponsor of the Trust and in its capacity as holder of all outstanding Common Securities of the Trust, the Regular Trustees, the Property Trustee, the Delaware Trustee and the Investors, which constitute all of the parties to the Amended and Restated Declaration of Trust, agrees that, to the extent any provisions of this Agreement are inconsistent with respect any provisions of the Amended and Restated Declaration of Trust, the provisions of the Amended and Restated Declaration of Trust are deemed amended on the Closing Date to itself conform to the provisions of this Agreement. Each of the Company, the Debenture Trustee, the Property Trustee, as the record owner of the Convertible Debentures, the Trust and the Investors, agrees that, to the extent any provisions of this Agreement are inconsistent with any provisions of the Indenture, the provisions of the Indenture are deemed amended on the Closing Date to conform to the provisions of this Agreement. In connection with the execution of this Agreement and the Amendments, each of the parties hereto, to the extent applicable, hereby approves, consents to and authorizes each of the amendments to the Amended and Restated Declaration of Trust, the Indenture and the Guarantee Agreements contemplated or effected by the Transaction Documents (including this Agreement) and hereby approves, consents to and authorizes all actions necessary for the execution of this Agreement, the Amendments and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion and Allocation Rights with respect to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed TransactionsTransaction Documents, including, without limitation, authorizing and directing the Debenture Trustee to accept and rely upon the opinion of tax counsel and the opinion of counsel being delivered pursuant to this Agreement for its execution of the First Supplemental Indenture to the Indenture delivered in connection herewith, and authorizing and directing each of the other applicable Trustees to execute the other Amendments on its behalf. Without limiting the generality of the foregoing, each of the parties hereto agrees and acknowledges that it will be deemed to have waived at Closing (a) any of its approval, consent and/or notice rights and/or rights to noticeadditional satisfaction (if any), rights to written assurancesand (b) any inconsistency with or default under the provisions of the Amended and Restated Declaration of Trust arising under, redemption rights arising out of a Change of Controlor triggered by, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to this Agreement or any other payments, securities, property Transaction Document or consideration the transactions contemplated or effected hereby or thereby or consummated pursuant hereto or thereto. Each such party further agrees that the Trust is to execute this Agreement for the purpose of whatever kind or naturebecoming a party hereto and agreeing to perform its obligations and duties hereunder.

Waiver and Consent. Each Landlord hereby consents to the location of the StockholdersEquipment on the Premises and does irrevocably waive, with respect disclaim and relinquish and assign to itself Lessor any and all rights to impose, receive, assert or enforce any lien, encumbrance, charge, security interest, ownership interest, claim or demand of any kind against or involving the Equipment, whether arising by common law, statute or consensually (under the Lease or otherwise) and whether now in existence or hereafter created, including, but not limited to, those for rent or other holders right of Preferred Stock payment. This waiver, disclaimer, relinquishment and assignment shall survive the termination of the Lease. Landlord further agrees that (a) neither the Equipment nor any item thereof shall become part of, or otherwise be or become a fixture attached to, the Premises, notwithstanding the manner of the Equipment's annexation, the Equipment's adaptability to the uses and purposes for which the Premises are used, and the intentions of the party making the annexation; (b) the Equipment (or any item thereof) may be repossessed by Lessor; (c) in connection with respect to all outstanding shares such repossession or otherwise, Lessor, and any of Preferred Stockits agents and employees, including all shares of Preferred Stock beneficially owned by it, effective and conditioned may enter upon the Closing (as defined in Premises for the Selling Stockholder Purchase Agreement), hereby purposes of (i) irrevocably waives all Accretion guarding and Allocation Rights with respect to maintaining the Proposed TransactionsEquipment (or any item thereof), (ii) irrevocably waivesshowing the Equipment (or any item thereof) to prospective lenders, buyers, lessees and sublessees, as applicable, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactionsof their respective 25 agents and employees, (iii) irrevocably consents to for all purposes under preparing, disassembling, dismantling, loading and/or removing the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment AgreementsEquipment (or any item thereof), and irrevocably authorizes and empowers (iv) general inspections of the Company Equipment pursuant to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Credit Agreement; and (ivd) irrevocably waives, except with respect to the right of Lessor to enter the Stockholders Premises and the other rights granted to receive the Shares upon conversion Lessor in this Waiver shall not terminate until thirty (30) days after Lessor receives written notice from Landlord of the outstanding shares termination of Preferred Stockthe Lease. If Lessor should exercise its rights hereunder (and the failure to exercise such rights shall not be construed as a waiver thereof), any interest Landlord agrees upon receiving prior written notice, to provide ingress and any and all other rights the Stockholders may have or which may accrue egress to effect such exercise as well as provide reasonably adequate space contiguous to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason location of the Company’s entry into Equipment to permit the exercise of such rights. Landlord further agrees that Lessor has no obligation to exercise any right granted to Lessor in this Waiver and the consummation that Lessor may elect to remove only a portion or none of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureEquipment from the Premises.

Waiver and Consent. Each (a) Any consent or waiver given by the holder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the holder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a holder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all subsequent holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution that shall be a Noteholder or that otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 8 (Affirmative Covenants of the Company), Section 9 (Negative Covenants of the Company), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect the rights of any Noteholder. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each Landlord hereby consents to the location of the StockholdersEquipment on the Premises and does irrevocably waive, with respect disclaim and relinquish and assign to itself Lessor any and all rights to impose, receive, assert or enforce any lien, encumbrance, charge, security interest, ownership interest, claim or demand of any kind against or involving the Equipment, whether arising by common law, statute or consensually (under the Lease or otherwise) and whether now in existence or hereafter created, including, but not limited to, those for rent or other holders right of Preferred Stock payment. This waiver, disclaimer, relinquishment and assignment shall survive the termination of the Lease. Landlord further agrees that (a) neither the Equipment nor any item thereof shall become part of, or otherwise be or become a fixture attached to, the Premises, notwithstanding the manner of the Equipment's annexation, the Equipment's adaptability to the uses and purposes for which the Premises are used, and the intentions of the party making the annexation; (b) the Equipment (or any item thereof) may be repossessed by Lessor; (c) in connection with respect to all outstanding shares such repossession or otherwise, Lessor, and any of Preferred Stockits agents and employees, including all shares of Preferred Stock beneficially owned by it, effective and conditioned may enter upon the Closing (as defined in Premises for the Selling Stockholder Purchase Agreement), hereby purposes of (i) irrevocably waives all Accretion guarding and Allocation Rights with respect to maintaining the Proposed TransactionsEquipment (or any item thereof), (ii) irrevocably waivesshowing the Equipment (or any item thereof) to prospective lenders, buyers, lessees and sublessees, as applicable, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactionsof their respective agents and employees, (iii) irrevocably consents to for all purposes under preparing, disassembling, dismantling, loading and/or removing the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment AgreementsEquipment (or any item thereof), and irrevocably authorizes and empowers (iv) general inspections of the Company Equipment pursuant to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Credit Agreement; and (ivd) irrevocably waives, except with respect to the right of Lessor to enter the Stockholders Premises and the other rights granted to receive the Shares upon conversion Lessor in this Waiver shall not terminate until thirty (30) days after Lessor receives written notice from Landlord of the outstanding shares termination of Preferred Stock, any interest and any and all other the Lease. If Lessor should exercise its rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements hereunder (and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any failure to exercise such rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.shall not be construed as

Waiver and Consent. Each  (a) Any consent or waiver given by the Noteholder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Stockholdersholder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution that shall be a holder of this Subordinated Note or that otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby.  (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note, (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes, (vi) make any changes to Section 4(c) (Partial Redemption), Section 5 (Events of Default; Acceleration), Section 6 (Failure to Make Payments), Section 7 (Affirmative Covenants of the Series A-2 Certificate Company), Section 8 (Negative Covenants of Designationthe Company), or Section 16 (Waiver and Consent) of the Series A-3 Certificate Subordinated Notes that adversely affects the rights of Designation and any Noteholder; (vii) disproportionately affect any of the Investment Agreements, and irrevocably authorizes and empowers Noteholders of the then outstanding Subordinated Notes; (viii) permit the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right declare or pay any cash dividends while an Event of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.Default is continuing or

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the holder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a holder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); or Section 8 (Negative Covenants of the Company) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each The Lender Parties hereby irrevocably (i) waive any and all Defaults and Events of Default that may exist and be continuing as of the Stockholders, with respect to itself Amendment Effective Date under and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase First Amended ITCD Credit Agreement and any other Loan Document as provided and defined in the First Amended ITCD Credit Agreement and irrevocably waive any and all remedies and other rights they may have under the First Amended ITCD Credit Agreement), hereby (i) irrevocably waives all Accretion any other Loan Document as provided and Allocation Rights with defined in the First Amended ITCD Credit Agreement, this Agreement or any other Loan Document or otherwise in respect to the Proposed Transactionsof such Defaults and Events of Defaults, (ii) irrevocably waives, agree and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect consent to the Unexercised Series A-3 Preferred consummation of each and every one of the Merger Transactions notwithstanding that the consummation of any such Merger Transaction may, in connection with the Proposed Transactionsabsence of this Section 9.14, be deemed to violate or breach, or conflict with, this Agreement or any other Loan Document or to constitute a Default or an Event of Default under the First Amended ITCD Credit Agreement, any other Loan Document as provided and defined in the First Amended ITCD Credit Agreement, this Agreement or any other Loan Document and (iii) irrevocably consents agree and covenant to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed TransactionsMEGAPOP Transactions notwithstanding that the consummation of the MEGAPOP Transactions may, includingin the absence of this Section 9.14, without limitationbe deemed to violate or breach, any rights to noticeor conflict with, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to this Agreement or any other paymentsLoan Document or to constitute a Default or an Event of Default under this Agreement or any other Loan Document. Notwithstanding any other provision of this Agreement to the contrary, securitiesonce this Agreement becomes effective, property or consideration the provisions of whatever kind or naturethis Section 9.14, as they apply to the First Amended ITCD Credit Agreement and any other such Loan Document, shall be deemed to have become effective immediately prior to the consummation of the Merger Transactions.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution that shall be a Noteholder or that otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of the Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 5 (Events of Default; Acceleration), Section 6 (Failure to Make Payments), Section 15 (Priority), or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each 1.1 Notwithstanding the terms of Section 2.8(b)(iv) and Section 7.5 of the StockholdersCredit Agreement, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), Requisite Lenders hereby (i) irrevocably waives all Accretion and Allocation Rights with respect consent to the Proposed Transactionsproceeds of the Holdings IPO being used for the Subordinated Debt Prepayment. 1.2 Notwithstanding the terms of Sections 7.5, (ii) irrevocably waives, 7.7 and elects not to receive any payments that might otherwise be payable upon exercise of7.13 of the Credit Agreement, the Investment Agreement Rights with respect Requisite Lenders hereby consent to the Unexercised Series A-3 Preferred DEI Headquarters Transfer so long as DEI Headquarters executes and delivers to the Administrative Agent, in connection with the Proposed TransactionsDEI Headquarters Transfer, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate a reaffirmation of Designation, the Series A-2 Certificate its Obligations and its pledge of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon Collateral in support thereof. 1.3 Notwithstanding the terms set forth in of Sections 7.12 and 7.15 of the Selling Stockholder Purchase Credit Agreement, the Company Purchase Requisite Lenders hereby consent to the Trivest Fee and the Trivest Management Agreement Replacement. 1.4 Notwithstanding the terms of Sections 7.5 and 7.12 of the Credit Agreement, the Requisite Lenders hereby consent to (i) the Program Compensation Termination and (ii) the Program Compensation Payments so long as the cash portion of such Program Compensation Payments do not exceed the amounts described in Amendment No. 4 to Holdings’ Form S-1 Registration Statement filed with the SEC on December 5, 2005. 1.5 The Requisite Lenders hereby waive the Subsidiary Formation Default. 1.6 The Requisite Lenders hereby waive the Holdings IPO Prepayment in respect of the proceeds of the Holdings IPO so long as the Subordinated Notes are prepaid in full with the proceeds of the Holdings IPO. 1.7 Except for the specific waivers set forth herein, nothing contained herein shall be deemed to constitute a waiver of (i) any rights or remedies the Administrative Agent or any Lender may have under the Credit Agreement or any other Loan Document or under applicable law or (ii) the Loan Parties’ obligation to comply fully with any duty, term, condition, obligation or covenant contained in the Credit Agreement and the Exchange Agreement; other Loan Documents not specifically waived. The specific waivers set forth herein are one-time waivers and (iv) irrevocably waivesshall be effective only in this specific instance and shall not obligate the Lenders to waive any Default or Event of Default, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have now existing or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or naturehereafter arising.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder will be conclusive and binding upon the Noteholder and upon all future holders of this Senior Note and of any Senior Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Senior Note. (d) No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default will impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. (e) Any insured depository institution which will be a Noteholder or which otherwise will have any beneficial ownership interest in this Senior Note will, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing this Senior Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (f) No waiver or amendment of any term, provision, condition, covenant or agreement in the Senior Notes shall be effective except with the written consent of the Noteholders of at least fifty percent (50%) of the aggregate principal amount of the Senior Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Senior Note, no such amendment or waiver may: (i) reduce the principal amount of such Senior Note; (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, reduce the Investment Agreement Rights with respect to rate of or change the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, time for payment of interest on such Senior Note; (iii) irrevocably consents to for all purposes extend the maturity of any Senior Note, (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Senior Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Senior Notes required to approve any amendment of the Senior Notes, (vi) make any changes to Section 5 adversely affects the Series A-2 Certificate rights of Designation, any of the Series A-3 Certificate Noteholders; or (vii) disproportionately and adversely affect the rights of Designation and any of the Investment Agreements, and irrevocably authorizes and empowers Noteholders of the Company to proceed with, then outstanding Senior Notes. Notwithstanding the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreementforegoing, the Company Purchase Agreement and may amend or supplement the Exchange Agreement; and (iv) irrevocably waives, except with respect to Senior Notes without the right consent of the Stockholders Noteholders to receive cure any ambiguity, defect or inconsistency or to provide for uncertificated Senior Notes in addition to or in place of certificated Senior Notes, or to make any change that does not adversely affect the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureNoteholder.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Holder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) Except as may apply to any particular waiving or consenting Holder, no waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any Person who is a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of greater than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each holder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of the Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes under extend the Series A-1 Certificate maturity of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreementany Subordinated Note; and (iv) irrevocably waives, except with respect to change the right currency in which payment of the Stockholders obligations of Company under the Subordinated Notes are to receive be made; (v) lower the Shares upon conversion percentage of aggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the outstanding shares of Preferred Stock, Subordinated Notes; (vi) make any interest and any and all other rights the Stockholders may have or which may accrue changes to the Stockholders pursuant Section 6 (Failure to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason Make Payments) of the Company’s entry into Subordinated Notes that adversely affects the rights of any holder of a Subordinated Note; or (vii) disproportionately and the consummation adversely affect any of the Proposed Transactionsholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, includingCompany may amend or supplement the Subordinated Notes without the consent of the holders of the Subordinated Notes to cure any ambiguity, without limitationdefect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, change that does not adversely affect the rights of first offerany holder of any of the Subordinated Notes. No failure to exercise or delay in exercising, voting rightsby any party hereto or any holder of the Subordinated Notes, dividend of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on Company in any case shall, in itself, entitle Company to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of Purchasers to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by Purchasers to or consideration of whatever kind any breach or naturedefault by Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Company hereunder. Failure on the part of Purchasers to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by Purchasers of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by Company.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all subsequent holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 6 (Events of Default; Acceleration; Compliance Certificate), Section 7 (Failure to Make Payments), Section 8 (Affirmative Covenants of the Company), or Section 9 (Negative Covenants of the Company) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affects the rights of any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all subsequent holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 8 (Affirmative Covenants of the Company), Section 9 (Negative Covenants of the Company), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect the rights of any Noteholder. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each Notwithstanding anything contained in the ABL Credit Agreement and the other Loan Documents, immediately after giving effect to the amendments in Section 1 hereof, each of the StockholdersAdministrative Agent and the Lenders party hereto hereby: a. consents to the Purchase Transaction as set forth in the Purchase Agreement as of the date hereof (as amended, waived or otherwise modified thereunder in accordance with respect this Section 3(a)) and agrees that the Purchase Transaction shall constitute a “Permitted Acquisition” for all purposes under the ABL Credit Agreement and the other Loan Documents so long as (i) the Purchase Transaction is consummated within 120 days of the date hereof and (ii) any contingent consideration (other than the net working capital adjustment) is paid within one year of the date hereof; provided that, unless the Administrative Agent shall have otherwise consented, such consent not to itself be unreasonably withheld, delayed or conditioned, the Purchase Agreement shall not be amended, waived or otherwise modified by the Lead Borrower or any of its Affiliates, except that (i) the initial cash purchase price of the Purchase Transaction to be paid to the sellers thereunder at closing may be increased if such increase is attributable to the adjustments to the amount of the initial cash purchase price to be paid to the sellers thereunder at closing as set forth in the Purchase Agreement as in effect on the date hereof, (ii) the non-cash portion of the consideration to be paid to the sellers thereunder may be amended, waived or otherwise modified, (iii) the consideration to be paid to the sellers thereunder may be reduced, (iv) the initial cash consideration to be paid to the sellers thereunder may be increased by an amount not exceeding 10% of the amount of consideration to be paid to the sellers thereunder, and (v) any other provision may be amended, waived or otherwise modified to the extent not materially adverse to the interests of the Lenders; b. confirms its agreement that (i) the New Term Loan Facility as described in the ORCC Commitment Letter is reasonably satisfactory as required by the definition of “Designated Senior Indebtedness” in the ABL Credit Agreement and (ii) the Indebtedness to be incurred under the New Term Loan Facility will constitute “Designated Senior Indebtedness” for all purposes under the ABL Credit Agreement and the other holders Loan Documents; c. each provide their consent, and direct the Administrative Agent, in its capacity as ABL Collateral Agent under the Intercreditor Agreement, to provide its consent, and the Administrative Agent, in its capacity as ABL Collateral Agent provides its consent, to the refinancing of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing Pari Term Loan Debt Obligations (as defined in the Selling Stockholder Purchase Intercreditor Agreement), hereby (i) irrevocably with Indebtedness incurred under the New Term Loan Facility and that the Indebtedness incurred under the New Term Loan Facility will constitute Pari Term Loan Debt Obligations; and d. waives all Accretion and Allocation Rights with respect the requirement of Section 7.10 of the ABL Credit Agreement as it applies to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any New Term Loan Facility and all other rights loan documents related thereto as described in the Stockholders may have or which may accrue ORCC Commitment Letter as of the date hereof. The Lenders party hereto constitute the “Required Lenders” as defined in the ABL Credit Agreement and hereby authorize and instruct the Administrative Agent to enter into this Amendment, and hereby agree that all provisions of Article IX of the Stockholders Credit Agreement apply to any actions of the Administrative Agent pursuant to hereto. This Amendment shall become effective immediately upon the Series A Certificates of Designationsignature hereof by the Lead Borrower, the Investment Agreements Lenders party hereto (comprising the Required Lenders) and the Registration Rights Agreement by reason Administrative Agent. The Lead Borrower hereby confirms that all provisions of Section 10.04, 10.07, 10.14 and 10.15 of the Company’s entry into and the consummation Credit Agreement apply to all of the Proposed Transactionsmatters covered by this Amendment. THIS AMENDMENT AND ALL MATTERS ARISING OUT OF OR RELATING IN ANY WAY WHATSOEVER TO THIS AMENDMENT (WHETHER IN CONTRACT, includingTORT OR OTHERWISE) SHALL BE GOVERNED BY, without limitationCONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. This Amendment shall constitute a “Loan Document” for purposes of the ABL Credit Agreement. Other than as set forth herein, no provision of any rights Loan Document is hereby waived, amended or otherwise modified, and, after giving effect to noticethis Amendment, rights to written assurances, redemption rights arising out the Loan Documents are hereby ratified and confirmed in all respects. The parties hereto agree that this Amendment shall not constitute a novation of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or naturethe ABL Credit Agreement.

Waiver and Consent. Each Effective as of the StockholdersEffective Time (as defined below): (a) Subject to Section 2(c) below, with respect the Investor hereby consents to itself Company’s entry into the New Purchase Agreement and all other holders the issuance of the New Preferred Stock and with respect to all outstanding shares New Warrants issued as part of Preferred Stockthe New Purchase Agreement and, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion and Allocation Rights solely with respect to the Proposed Transactionstransactions contemplated by the New Purchase Agreement, (ii) irrevocably waiveshereby waives any restriction, and elects not to receive any payments that might otherwise be payable upon exercise ofcovenant or other obligation of the Company in the Purchase Agreement, the Investment Notes or any other transaction document entered into between the parties in order for the Company to enter into, consummate the transactions contemplated by and perform its obligations under the New Purchase Agreement Rights and issue the New Preferred Stock and the New Warrants. (b) Solely with respect to the Unexercised Series A-3 issuance of the New Preferred in connection Stock and the New Warrants pursuant to the New Purchase Agreement, and not with the Proposed Transactions, (iii) irrevocably consents respect to for all purposes under the Series A-1 Certificate of Designationany other Subsequent Placement, the Series A-2 Certificate Investor hereby waives the right of Designationparticipation as set forth in Section 4(o) of the Purchase Agreement. (c) As a condition to the waiver and consent provided herein, the Series A-3 Certificate of Designation Company hereby acknowledges and the Investment Agreementsagrees, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms that notwithstanding anything set forth in the Selling Stockholder New Purchase Agreement, the New Warrants, the certificate of designations of the New Preferred Stock and/or any other related agreement or security, the Company shall not pay cash to any person pursuant to the New Purchase Agreement Agreement, the New Preferred Stock or New Warrants (or any Convertible Security or indebtedness created or issued in exchange therefor or otherwise in connection therewith, as applicable, or any other agreement related thereto) at any time any Notes remain outstanding, and any such payment obligation arising thereunder shall be held in abeyance and shall be expressly subordinate to the Exchange Agreement; and (iv) irrevocably waives, except rights of the holders of Notes with respect thereto; provided, that the Company shall be permitted to satisfy any such obligations to any such person in shares of Common Stock or New Preferred Stock in accordance therewith. (d) Notwithstanding the foregoing, nothing herein shall be deemed to amend, modify or waive any adjustments to the right conversion price of the Stockholders to receive Notes or the Shares upon conversion exercise price of the outstanding shares Warrants, as applicable, that may, from time to time, occur in accordance with the terms thereof upon the Company’s issuance of the New Preferred Stock, New Warrants and/or any interest and any and all other rights the Stockholders may have security issuable upon conversion or which may accrue to the Stockholders pursuant to the Series A Certificates of Designationexercise thereof, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureas applicable.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Stockholdersholder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution that shall be a holder of this Subordinated Note or that otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (ix) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 5 (Events of Default; Acceleration), Section 6 (Failure to Make Payments), Section 7 (Affirmative Covenants of the Series A-2 Certificate Company), Section 8 (Negative Covenants of Designationthe Company), or Section 15 (Waiver and Consent) of the Series A-3 Certificate Subordinated Notes that adversely affects the rights of Designation and any Noteholder; (vii) disproportionately affect the Investment Agreements, and irrevocably authorizes and empowers rights of any of the Noteholders of the then outstanding Subordinated Notes; (viii) permit the Company to proceed with, the Proposed Transactions upon declare or pay any cash dividends while an Event of Default is continuing or; modify the terms set forth of subordination of the affected Subordinated Note in a manner adverse to the Selling Stockholder Purchase Agreementholder. Notwithstanding the foregoing, the Company Purchase Agreement and may amend or supplement the Exchange Agreement; and (iv) irrevocably waives, except with respect to Subordinated Notes without the right consent of the Stockholders to receive the Shares upon conversion Noteholders of the outstanding shares Subordinated Notes to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of Preferred Stockcertificated Subordinated Notes, or to make any interest and change that does not adversely affect the rights of any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates Noteholder of Designation, the Investment Agreements and the Registration Rights Agreement by reason any of the Company’s entry into and the consummation Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Proposed TransactionsSubordinated Notes, includingof any right, without limitationpower or privilege hereunder shall operate as a waiver thereof, nor shall any rights to noticesingle or partial exercise of any right, rights to written assurancespower or privilege preclude any other or further exercise thereof, redemption rights arising out or the exercise of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend any other right or remedy provided at law or in equity. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided at law or in equity. No notice or demand on the Company in any case shall, in itself, entitle the Company to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of Noteholders to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or any term or provision hereof may be waived pursuant to, and in accordance with, the provisions of Section 8.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption); Section 6 (Events of Default; Acceleration); Section 7 (Failure to Make Payments); Section 8 (Negative Covenants of the Company); Section 14 (Priority) or Section 16 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or nature.default by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company. ​

Waiver and Consent. Each (a) Any consent or waiver given by the holder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the holder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a holder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding at least fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securities, property expressed or consideration of whatever kind or nature.A-23

Waiver and Consent. Each As of the StockholdersSixth Amendment Effective Date, (a) the Collateral Agent, the Administrative Agent, and each Lender signatory to an Acknowledgement and Consent hereby consents to the Borrower and the applicable Subsidiaries entry into, and the consummation of the transactions contemplated by, the Fasco Restructurings and the Fasco Sale Documents and waives any Defaults or Events of Default arising solely from the consummation of such transactions, on any date on or prior to the effective date of such transactions, it being understood that no consent is granted hereby with respect to any A&S Sale. (b) the Administrative Agent and each Lender signatory to an Acknowledgement and Consent hereby consents to granting of a first priority security interest to the purchaser under the Fasco Sale Documents (the "Fasco Purchaser") with respect to, and only with respect to, the Fasco Escrow Funds, and only for such time as the Fasco Escrow Funds are held pursuant to the Fasco Escrow Agreements (each a "Purchaser Lien" and collectively the "Purchaser Liens"), it being understood that (i) by such consent neither the Administrative Agent nor any Lender waives any rights or interest such parties may have with respect to the Fasco Escrow Funds, if any, except as specifically provided in this Section 3 and (ii) with respect to any such Fasco Escrow Funds owing to the Borrower upon completion of the Fasco Sale and expiration of the terms of the Fasco Escrow Agreements, such funds shall be returned to the Borrower and any security interest and lien over such funds in favor of the Collateral Agent on behalf of the Secured Parties pursuant to the Loan Documents shall, unless such security interest and lien has been released or otherwise terminated prior thereto, automatically continue with the same priority as was in effect prior to the Sixth Amendment Effective Date. (c) the Collateral Agent and each Lender signatory to an Acknowledgement and Consent hereby acknowledges and agrees, with respect to itself the Purchaser Liens and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing Senior Lien (as defined in the Selling Stockholder Purchase Intercreditor Agreement)) on such Fasco Escrow Funds, hereby whether under the Credit Agreements or any extension of credit during the term of one or more of the Fasco Escrow Agreements, that notwithstanding the date, manner or order of grant, attachment or perfection of any Senior Lien or Purchaser Lien and notwithstanding any provisions of the UCC or any other applicable Requirement of Law or any other circumstance whatsoever: (i) irrevocably waives any Purchaser Lien on all Accretion or any portion of such Fasco Escrow Funds shall be senior and Allocation Rights prior in all respects to any Senior Lien on such Fasco Escrow Funds and shall remain so, whether or not such Purchaser Lien is junior or subordinate to any other obligation or any Lien securing any other obligation, in each case, for so long as such Fasco Escrow Funds are held under the Fasco Escrow Agreements; and (ii) any Senior Lien on all or any portion of such Fasco Escrow Funds shall be junior and subordinate in all respects to the Purchaser Liens on such Fasco Escrow Funds, in each case, for so long as such Fasco Escrow Funds are held under the Fasco Escrow Agreements. (d) Subject to the immediately following sentence, and with respect to each and every disbursement of all or a portion of the Proposed TransactionsFasco Escrow Funds to a party other than the Borrower or a Subsidiary, the Collateral Agent hereby releases, effective immediately upon any such disbursement, any Lien upon that portion of the Fasco Escrow Funds so disbursed. The foregoing notwithstanding, the Senior Lien upon the Fasco Escrow Funds, if any, shall, unless such lien has been released or otherwise terminated prior thereto, (iix) irrevocably waives, remain a valid and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions perfected Lien upon the terms set forth Fasco Escrow Funds at all times while held in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders escrow pursuant to the Series A Certificates of Designation, Fasco Escrow Agreements or disbursed to the Investment Agreements Borrower or a Subsidiary and (y) not be released unless and until such funds are actually disbursed to a party other than the Registration Rights Agreement by reason of Borrower or a Subsidiary in accordance with the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureFasco Escrow Agreements.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding - 50 - upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution that shall be a Noteholder or that otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of the Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by the Noteholders to or consideration of whatever kind any breach or nature.default by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company. - 51 -

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the Noteholder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption); Section 6 (Events of Default; Acceleration); Section 7 (Failure to Make Payments); Section 8 (Affirmative Covenants of the Company); Section 9 (Negative Covenants of the Company); Section 15 (Priority) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) The Bank hereby (i) waives any restrictions set forth in the Loan Agreement and the First Mountaingate Deed to the extent such restrictions would prohibit the grant of the StockholdersSecond Mountaingate Deed, (ii) consents to and approves of the Company's execution of the Second Mountaingate Deed in favor the Collateral Agent and (iii) consents to the release of the Currently Pledged Securities as collateral under the Loan Agreement in order to allow them to serve as collateral under the Restructuring Agreement in accordance with respect the terms of the Pledge Agreement. (b) The Bank hereby waives any default or event of default arising out of a material adverse change in the financial condition of David Price, the Price Trust or Dallas P. Price, as an individual, xxx Xxxxxx P. Price Trust or Mountaingate as of the date hereof under Section 6.1(1) of the Loan Agreement. (c) The Bank hereby acknowledges receipt of a litigation disclosure letter dated July 8, 2002 and waives any default or event of default arising out of any failure to itself and all provide such information prior to the date hereof pursuant to Section 6.1(i) of the Loan Agreement. (d) The Bank consents to any future sale by the Company of a partnership or other holders equity interest in the Company, or the future pledge or encumbrance by the Company of Preferred Stock and with respect any interest or part in the Property, provided that (i) the net proceeds of any such transaction are in an amount at least equal to all outstanding shares the value of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing Alternate Mountaingate Collateral (as defined in the Selling Stockholder Purchase AGC Collateral Agency Agreement), hereby and (ii) such amount of the net proceeds are immediately pledged or otherwise provided to the Collateral Agent as the Alternate Mountaingate Collateral. (e) The parties hereto acknowledge and agree that (i) irrevocably waives all Accretion the occurrence of an Alternate Major Default (as defined in the AGC Collateral Agency Agreement) shall constitute an event of default (a "Cross-Default") under the Loan Agreement and Allocation Rights with respect the First Mountaingate Deed, provided that the Bank shall not be entitled to foreclose upon any shares of securities pledged by Dallas P. Price under the Proposed Transactions, Loan Agreement until and unless an event of default other than a Cross-Default shall have occurred under the First Mountaingate Deed; and (ii) irrevocably waives, and elects a cure of any such Alternate Major Default under the Second Mountaingate Deed shall constitute a cure of any Cross-Default that resulted thereby. (f) The Bank agrees that any failure to provide the Alternate Collateral (as defined in the AGC Collateral Agency Agreement) shall not to receive result in a default or event of default under the First Mountaingate Deed. (g) Upon any payments that might otherwise be payable upon exercise offoreclosure of the Second Mountaingate Deed, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers lease between the Company to proceed with, the Proposed Transactions upon the terms set forth and AGC in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureProperty shall be terminated.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution that shall be a Noteholder or that otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of the Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder of the Stockholders, with respect to itself this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all other holders future Noteholders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of more than 50% in aggregate principal amount (excluding any Subordinated Notes held by Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes under extend the Series A-1 Certificate maturity of Designationany Subordinated Note, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to change the right currency in which payment of the Stockholders obligations of Company under the Subordinated Notes are to receive be made; (v) lower the Shares upon conversion percentage of aggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the outstanding shares Subordinated Notes, (vi) make any changes to Section 6 that adversely affects the rights of Preferred Stock, any interest and Noteholder; or (vii) disproportionately affect any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation Noteholders of the Proposed Transactionsthen outstanding Subordinated Notes. Notwithstanding the foregoing, includingCompany may amend or supplement the Subordinated Notes without the consent of the Noteholders to cure any immaterial ambiguity, without limitationdefect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, change that does not adversely affect the rights of first offerany Noteholder. No failure to exercise or delay in exercising, voting rightsby any Noteholder, dividend of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on Company in any case shall, in itself, entitle Company to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of Noteholders to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by Noteholders to or consideration of whatever kind any breach or naturedefault by Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by Company.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption); Section 5 (Events of Default; Acceleration); Section 7 (Failure to Make Payments); Section 8 (Affirmative Covenants of the Company); Section 9 (Negative Covenants of the Company); Section 15 (Priority) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time ​ ​ outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 16 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 8.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of greater than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by Issuer or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes under extend the Series A-1 Certificate maturity of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreementany Subordinated Note; and (iv) irrevocably waiveschange the currency in which payment of the obligations of Issuer under the Subordinated Notes are to be made; (v) lower the percentage of aggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4 (Merger and Sale of Assets), Section 5 (Events of Default; Acceleration; Compliance Certificate), Section 6 (Affirmative Covenants of the Issuer), Section 7 (Negative Covenants of the Issuer), Section 8 (Failure to Make Payment), or this Section 19 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, Issuer may amend or supplement the Subordinated Notes without the consent of the Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the rights of any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend as restricted hereby. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on Issuer in any case shall, in itself, entitle Issuer to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Noteholders to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by Issuer in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Issuer hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by Issuer.

Waiver and Consent. Each (a) Solely in connection with the Convertible Note Offering, Hillair hereby waives the Price-Based Issuance Prohibition as set forth in Section 4.13(b) of the StockholdersHillair SPA. (b) Solely in connection with the Convertible Note Offering, Hillair hereby waives the Notice Requirement and Adjustment of Conversion Price Requirement as set forth in Section 5(b) of the Debenture. (c) Solely in connection with the Convertible Note Offering, Hillair hereby waives the Prohibition Against Assuming Additional Indebtedness as set forth in Section 7 of the Debenture. (d) Solely in connection with the Convertible Note Offering and the Note Repayment, Hillair hereby waives the Prohibition Against Debt Repayment as set forth in Section 7(e) of the Debenture. (e) The above waivers in clauses (a)-(d) by Hillair are effective as of the date hereof, subject to the Company’s payment to Hillair of $200,000 in cash as repayment of outstanding principal amount on the Debenture on the date hereof. (f) The above waivers shall not be deemed continuing waivers of any future notice or consent required by the Hillair SPA, the Debenture or the Certificate. This Agreement is a one-time waiver and limited to the matters expressly waived herein and should not be construed as an indication that Hillair would be willing to agree to any future modifications to or waiver of any of the terms of the Hillair SPA, the Debenture or the Certificate, or any modifications to or waiver of any default that may exist or occur thereunder. Except as expressly set forth above, the terms and conditions of the Hillair SPA, the Debenture and the Certificate shall remain in full force and effect and each of the parties reserves all rights with respect to itself any other matters and all remedies (g) The Company hereby represents, warrants and covenants to Hillair that (i) the transaction documents in connection with the Convertible Note Offering contain no prohibition or limitation on payment by the Company of interest and principal and other holders amounts owed in accordance with terms of Preferred Stock the Debenture and with respect to all outstanding shares (ii) the Notes issued in the Convertible Note Offering are not secured by any assets of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing Company or any Subsidiary (as defined in the Selling Stockholder Purchase AgreementHillair SPA), hereby (i) irrevocably waives all Accretion and Allocation Rights with respect to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or nature.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any Person who is a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of greater than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each holder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of the Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes under extend the Series A-1 Certificate maturity of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreementany Subordinated Note; and (iv) irrevocably waives, except with respect to change the right currency in which payment of the Stockholders obligations of Company under the Subordinated Notes are to receive be made; (v) lower the Shares upon conversion percentage of aggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the outstanding shares of Preferred Stock, Subordinated Notes; (vi) make any interest and any and all other rights the Stockholders may have or which may accrue changes to the Stockholders pursuant Section 6 (Failure to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason Make Payments) of the Company’s entry into Subordinated Notes that adversely affects the rights of any holder of a Subordinated Note; or (vii) disproportionately and the consummation adversely affect any of the Proposed Transactionsholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, includingCompany may amend or supplement the Subordinated Notes without the consent of the holders of the Subordinated Notes to cure any ambiguity, without limitationdefect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, change that does not adversely affect the rights of first offerany holder of any of the Subordinated Notes. No failure to exercise or delay in exercising, voting rightsby any party hereto or any holder of the Subordinated Notes, dividend of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on Company in any case shall, in itself, entitle Company to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of Noteholders to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by Noteholders to or consideration of whatever kind any breach or naturedefault by Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Company hereunder. Failure on the part of Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by Company.

Waiver and Consent. Each Any consent or waiver given by the Noteholders or otherwise in accordance with the terms hereof shall be conclusive and binding upon such Noteholder and upon all subsequent holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing this Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of such Subordinated Note; (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, reduce the Investment Agreement Rights with respect to rate of or change the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, time for payment of interest on such Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of such Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendments of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 16 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholder to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Note in addition to or in place of certificated Subordinated Note, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each Laurus hereby consents to the consummation by the Company of the StockholdersBridge Financing and the transactions contemplated therein, with respect and agrees that the creation and existence of Security Interests contemplated by the Bridge Financing shall not constitute a breach or default of the Covenants; provided, however, that: (a) such Security Interests remain fully subordinated to itself any security interest of Laurus pursuant to the terms of the Security Agreement; and (b) except as expressly otherwise provided in this Agreement or as the Senior Lender may otherwise expressly consent in writing, any payments to the Subordinated Lenders pursuant to the terms of the Bridge Financing or otherwise shall be postponed and all subordinated to the payment in full of Obligations to Laurus (as such term is defined in the Security Agreement) and any other holders obligations to Laurus. Furthermore, no payments or other distributions whatsoever pursuant to the terms of Preferred Stock the Bridge Financing or otherwise to the Subordinated Lenders shall be made, nor shall any property or assets of the Company or any of its Subsidiaries be applied to the purchase or other acquisition or retirement of any liability to the Subordinated Lenders pursuant to the Bridge Financing or otherwise. Notwithstanding anything to the contrary contained in this paragraph 3(b) or elsewhere in this Agreement, (i) the Company and with respect its Subsidiaries may make regularly scheduled principal and interest payments, as the case may be, to all outstanding shares the Subordinated Lenders pursuant to the Bridge Financing, so long as (A) no Event of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing Default (as defined in the Selling Stockholder Purchase Note and as defined in the Security Agreement)) has occurred and is continuing at the time of any such payment and (B) the amount of such regularly scheduled principal payments and the rate of interest, hereby (i) irrevocably waives all Accretion and Allocation Rights with respect in each case, payable to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect Subordinated Lenders pursuant to the Unexercised Series A-3 Preferred terms of the Bridge Financing is not increased from that in connection with effect on the Proposed Transactionsdate of effectiveness of this Agreement pursuant to Section 4(b) hereof; provided, (iii) irrevocably consents however, that if the Event of Default occurs pursuant to for all purposes under the Series A-1 Certificate of DesignationNote or the Security Agreement, regularly scheduled principal and interest payments, as the Series A-2 Certificate of Designationcase may be, to the Series A-3 Certificate of Designation and Subordinated Lenders pursuant to the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions Bridge Financing may resume upon the terms expiration of the 180-day period following the date of such Event of Default . The consent set forth in the Selling Stockholder Purchase Agreementthis paragraph 3 shall be applicable, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waivesbe limited, except with respect only to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureBridge Financing.

Waiver and Consent. Each (a) Pursuant to the request by the Borrowers, the Lender and the Collateral Agent hereby consent to, and waive any Default or Event of Default that would otherwise arise under Section 6.1(c) of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (Credit Agreement as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion and Allocation Rights with respect to the Proposed Transactions, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise a result of, the Investment Agreement Rights any noncompliance with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iiiSection 5.10(a) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right of the Stockholders to receive the Shares upon conversion Credit Agreement or Section 6(g) of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Pledge Agreement by reason of (i) the Company’s entry into release by the Collateral Agent of any lien on or security interest in the Released Shares and (ii) the charitable contribution of the Released Shares (with a fair market value of approximately $2,000,000) by the Pledgor to the Foundation in connection with a Charitable Contribution, which for purposes of Section 5.10 of the Credit Agreement shall be deemed a "Permitted Charitable Contribution", PROVIDED that (A) the Borrowers shall give the Lender written notice promptly after such Permitted Charitable Contribution is consummated and promptly after the Foundation sells or otherwise transfers any of the Released Shares, (B) the Borrowers shall not effect any other transfer of Triarc Shares to any charitable institution during any calendar quarter when the Permitted Charitable Contribution of the Released Shares is consummated, and (C) the number of Triarc Shares that may be transferred during any calendar quarter to a charitable institution in accordance with Section 5.10 shall be further reduced by the number of Triarc Shares sold or otherwise transferred by the Foundation. (b) The consents and waivers set forth in subsection (a) above shall cease to be effective and shall have no force or effect to the extent the Released Shares have not been used by the Pledgor to make a Charitable Contribution pursuant to, and in the manner permitted by, Section 5.10(a) of the Credit Agreement on or prior to May 31, 2005. (c) The waivers and consents in this Section 3 shall be effective only in the specific instances and for the specific purposes set forth herein and do not allow for any other or further departure from the terms and conditions of the Credit Agreement or any other Loan Document, which terms and conditions shall remain in full force and effect. The Collateral Agent hereby expressly reserves all of its rights and remedies under the Credit Agreement and the consummation of other Loan Documents against the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureLoan Parties.

Waiver and Consent. Each Lender acknowledges and agrees that upon satisfaction of each of the Stockholders, with respect to itself conditions set forth in Section 4 of this Amendment: (a) the Events of Default arising under Section 6.13(g) and all other holders Section 6.13(k)(ii) of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion and Allocation Rights Loan Agreement shall be deemed waived solely with respect to the Proposed Transactionsformation of GlassHouse Australia; (b) the Event of Default arising under Section 6.20(b) of the Loan Agreement shall be deemed waived solely with respect to Borrower’s failure to comply with the financial covenant set forth therein for the Trailing Twelve Month Period ended September 30, 2010; (iic) irrevocably waivesthe Event of Default arising under Section 8.01(f) of the Loan Agreement shall be deemed waived solely with respect to GlassHouse Israel’s failure, and elects not prior to receive any payments that might otherwise the date hereof, to fulfill its obligations set forth in Section 3 of the Bank Leumi Letter Agreement; (d) the Event of Default arising under Section 8.01(f) of the Loan Agreement shall be payable upon exercise of, the Investment Agreement Rights deemed waived solely with respect to the Unexercised Series A-3 Preferred “defaults and Events of Defaults” described in connection with the Proposed Transactionsthat certain waiver letter dated December 23, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation2010, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation by and among Borrower and the Investment AgreementsRequisite Purchasers to that certain Note and Warrant Purchase Agreement dated as of June 28, and irrevocably authorizes and empowers 2010 (the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder “Note Purchase Agreement, ”); and (e) the Company Purchase Event of Default arising under Section 8.01(f) of the Loan Agreement and the Exchange Agreement; and (iv) irrevocably waives, except shall be deemed waived solely with respect to the right “defaults and events of default” described in that certain waiver letter dated December 22, 2010, by and among Borrower and the Stockholders First Lien Lender (collectively, paragraphs (a) through (e), the “Identified Waivers”). The foregoing Identified Waivers are not and shall not be deemed a waiver of any other Default or Event of Default now existing or occurring after the date hereof, regardless of whether Lender has notice or knowledge thereof. Lender expressly reserves the full extent of its rights under the Loan Agreement, the other Financing Documents and applicable law in respect of any other now existing or hereafter occurring Default or Event of Default whether known or unknown to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue Lender. Lender hereby consents to the Stockholders pursuant to the Series A Certificates formation of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureGlassHouse Australia.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the StockholdersNoteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of not less than more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes under extend the Series A-1 Certificate maturity of Designationany Subordinated Note, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to change the right currency in which payment of the Stockholders obligations of Company under the Subordinated Notes are to receive be made; (v) lower the Shares upon conversion percentage of aggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the outstanding shares of Preferred Stock, Subordinated Notes; (vi) make any interest and any and all other rights the Stockholders may have or which may accrue changes to the Stockholders pursuant Section 6 (Failure to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason Make Payments) of the Company’s entry into and Subordinated Notes that adversely affects the consummation rights of any Noteholder; or (vii) disproportionately affect any of the Proposed TransactionsNoteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, includingCompany may amend or supplement the Subordinated Notes without the consent of the Noteholders to cure any ambiguity, without limitationdefect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, change that does not adversely affect the rights of first offerany Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, voting rightsby any Noteholder of the Subordinated Notes, dividend of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on Company in any case shall, in itself, entitle Company to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of Noteholders to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by Noteholders to or consideration of whatever kind any breach or naturedefault by Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by Company.

Waiver and Consent. Each (a) Pursuant to the request of the StockholdersBorrowers and in accordance with Section 12.02 of the Financing Agreement, with respect for the period commencing on the effective date of this Waiver and ending on the earlier to itself and all other holders occur of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), hereby (i) irrevocably waives all Accretion March 31, 2005 and Allocation Rights (ii) the date on which the Borrowers, the Agents and the Lenders agree in writing upon an alternate application of the Net Cash Proceeds of the Tax Refund (the “Waiver Period”), the Agents and the Lenders hereby agree that the Net Cash Proceeds of the Tax Refund shall not be required to be applied (and the Agents and the Lenders shall not apply such Net Cash Proceeds) to the Term Loan pursuant to Section 2.05(c) and Section 2.05(d) of the Financing Agreement; provided, that (A) the Net Cash Proceeds of the Tax Refund (x) are held by the Borrowers in Account No. 20000000 with Banc of America Securities LLC (the “Designated Account”), which Designated Account is subject to that certain Collateral Account Notification and Acknowledgement Agreement, dated as of May 21, 2004 (the “Securities Account Control Agreement”), among the Parent, the Collateral Agent and Banc of America Securities LLC (the “Securities Intermediary”), and (y) may not be used by the Borrowers for any purpose whatsoever and (B) the Collateral Agent delivers to the Securities Intermediary a “Notice of Exclusive Control” under the Securities Account Control Agreement with respect to the Proposed Transactionsamount of the Tax Refund held in the Designated Account. (b) Upon the expiration of the Waiver Period, the waiver and consent provided for herein shall immediately (iiwithout cure period) irrevocably waivesand automatically terminate in its entirety and be of no further force or effect and, except in the case of the expiration of the Waiver Period pursuant to clause (a)(ii) above, all Net Cash Proceeds of the Tax Refund required to be applied to the Term Loan pursuant to Section 2.05(c) and Section 2.05(d) of the Financing Agreement shall be applied by the Borrowers to the Term Loan pursuant to such Sections. (c) The waiver and consent in this Section 2 shall be effective only in this specific instance, for the specific purpose, and elects for the specific period set forth herein and does not to receive allow for any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, (iii) irrevocably consents to for all purposes under the Series A-1 Certificate of Designation, the Series A-2 Certificate of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon other or further departure from the terms set forth in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right conditions of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have Financing Agreement or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other paymentsLoan Document, securities, property or consideration of whatever kind or naturewhich terms and conditions shall continue in full force and effect.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Company and the Noteholders holding not less than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each Any consent or waiver given by the holder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the holder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a holder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company) or Section 17 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution that shall be a Noteholder or that otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsindebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of the Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately and adversely affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each A. Subject to the terms and conditions set forth herein and in reliance on the representations and warranties of Borrowers herein contained, the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement), Lenders hereby waive (i) irrevocably waives all Accretion Events of Default arising by reason of defaults existing under the Convertible Subordinated Notes and Allocation Rights with respect the Senior Subordinated Notes to the Proposed Transactionsextent such defaults are waived pursuant to the amendments to the Convertible Subordinated Notes and the Senior Subordinated Note delivered pursuant to Section 6.1 and Section 6.5 of this Amendment and (ii) noncompliance by the Borrowers with the provisions of (a) Sections 7.08, 7.09, 7.10 and 7.11, as such provisions were in effect prior to the Sixth Amendment Date, at September 30, 2000, December 31, 2000 and March 31, 2001, and for the periods then ended and (b) Sections 6.01 and 7.05 resulting from the dissolution of SPDS DMI, Inc., Gentle Dental IF, Inc. and GMS Dental Group Management of Southern California, Inc. and the merger of Serra Park into Dental Management, provided that (1) each such dissolution results in the assets (if any) and liabilities (if any) of each dissolving company being assumed by the dissolving company's immediate parent and (2) the merger of Serra Park results in the assets and liabilities of Serra Park being assumed by Dental Management. Upon delivery of evidence of completion of a dissolution or merger to the Administrative Agent satisfactory to the Administrative Agent, the dissolving or merged company shall cease to be a "Grantor" under the Security Agreement and a "Guarantor" under the Credit Agreement and the stock of such subsidiary shall no longer be considered "Pledged Stock" or "Collateral" under the Pledge Agreement. Notwithstanding the foregoing, the security interest of the Administrative Agent (for the ratable benefit of the Lenders) in the assets of each subsidiary that is dissolved or merged as permitted hereby shall continue. B. Subject to the terms and conditions set forth herein and in reliance on the representations and warranties of the Borrowers herein contained, the Lenders hereby consent to (i) the Dispositions, provided that the Dispositions occur by April 30, 2001 and result in the Borrowers receiving cash proceeds of not less than $3,000,000 (before deduction of expenses and taxes), an 8% $254,000 Promissory Note due March 2002, and forgiveness of Indebtedness of not less than $696,000, which Indebtedness is evidenced by a promissory note dated February 24, 1997, (ii) irrevocably waives, and elects not to receive any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect release of Liens in favor of the Lenders to the Unexercised Series A-3 Preferred in connection with extent that such Liens encumber assets sold pursuant to the Proposed Transactions, Dispositions and (iii) irrevocably consents the entering into by Dental Service of an amendment to for all purposes under the Series A-1 Certificate Management Agreement with Mid-Atlantic Dental Associates, P.A. that excludes the Annapolis/Cross Keys Practices from the operation of Designation, such agreement; provided that the Series A-2 Certificate cash proceeds of Designation, the Series A-3 Certificate of Designation and the Investment Agreements, and irrevocably authorizes and empowers the Company to proceed with, the Proposed Transactions upon the terms Dispositions shall be applied as set forth in Section 2.09 of the Selling Stockholder Purchase Credit Agreement, as amended hereby. C. Subject to the Company Purchase Agreement terms and conditions set forth herein and in reliance on the representations and warranties of the Borrowers herein contained, the Lenders hereby consent to the amendments to the Senior Subordinated Note and the Exchange Agreement; Convertible Subordinated Notes reflected in the amendments delivered pursuant to Sections 6.1, 6.2 and (iv) irrevocably waives, except with respect 6.3 hereof and the amendment to the right Senior Subordinated Note requiring an increase of the Stockholders rate of interest thereon, during such time as interest is not paid in cash, to receive not more than 161/2% per annum and payment of an amendment fee in the Shares upon conversion form of an additional subordinated note having the outstanding shares same terms and conditions as the Senior Subordinated Note in an amount not to exceed $2,250,000; provided that the payment of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue is subject to the Stockholders pursuant amendment referred to the Series A Certificates in Section 6.1 of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or naturethis Amendment.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the Noteholder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a Noteholder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 5 (Events of Default; Acceleration); Section 6 (Failure to Make Payments); Section 7 (Affirmative Covenants of the Company); Section 8 (Negative Covenants of the Company), Section 14 (Priority) or Section 16 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Borrower hereby acknowledges and agrees that pursuant to clause (a) of Section 7.6 of the Stockholders, with respect to itself and all other holders Agreement it is prohibited from making payments of Preferred Stock and with respect to all outstanding shares severance in excess of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined $250,000 in the Selling Stockholder Purchase aggregate during any twelve month period without the prior written consent of Lender. Borrower acknowledges and agrees that it has made severance payments in excess of $250,000 during the period commencing January 1, 2006 and continuing through September 15, 2006 in violation of Section 7.6 of the Agreement which constitutes an Event of Default under the Agreement. Borrower has requested that Lender agree to a waiver of such Event of Default for the twelve month period ending September 30, 2006. Subject to the terms and conditions of this Section 1, the Lender does hereby waive such Event of Default. (b) Borrower hereby acknowledges and agrees that it is obligated to make additional payments of severance during the period commencing as of September 30, 2006 and continuing through December 31, 2007 in the aggregate amount of $582,292 (the “Scheduled Severance Payments”), . Borrower has requested that Lender consent to the payment of the Scheduled Severance Payments under clause (a) of Section 7.6. Lender hereby consents to the payment of the Scheduled Severance Payments on the following terms and conditions: (i) irrevocably waives all Accretion and Allocation Rights with respect The payment of the Scheduled Severance Payments shall be made prior to the Proposed TransactionsDecember 31, 2007; (ii) irrevocably waives, and elects not to receive The payment of the Scheduled Severance Payments shall be in lieu of any payments that might of severance which Borrower would otherwise be payable upon exercise ofpermitted to pay under clause (a) of Section 7.6 of the Agreement during the period commencing as of September 30, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions2006 and continuing through December 31, 2006; (iii) irrevocably consents Borrower shall not make any payments of severance other than the Scheduled Severance Payments without the prior written consent of Lender; (iv) Borrower shall not make any Scheduled Severance Payments if a Default or Event of Default shall have occurred and be continuing as of the date of the making of any such payment; (v) All payments of severance by Borrower after December 31, 2007 shall be governed by Section 7.6 of the Agreement; and (vi) Borrower’s failure to comply with the foregoing terms and conditions shall constitute an Event of Default. (c) Borrower hereby acknowledges and agrees that pursuant to Section 1 of Annex I of the Agreement it is prohibited from permitting EBITDA to be less than $850,000 for all purposes the Test Period ending July 31, 2006. Borrower acknowledges and agrees that EBITDA was less than $850,000 for the Test Period ending July 31, 2006 which constitutes an Event of Default under the Series A-1 Certificate Agreement. Borrower has requested that Lender agree to a waiver of Designationsuch Event of Default. Subject to the terms and conditions of this Section 1, the Series A-2 Certificate Lender does hereby waive such Event of DesignationDefault. (d) Borrower hereby acknowledges and agrees that pursuant to Section 2 of Annex I of the Agreement it is prohibited from permitting the Fixed Charge Coverage Ratio to be less than 1.0 to 1.0 for the Test Period ending July 31, 2006. Borrower acknowledges and agrees that the Fixed Charge Coverage Ratio was less than 1.0 to 1.0 for the Test Period ending July 31, 2006 which constitutes an Event of Default under the Agreement. Borrower has requested that Lender agree to a waiver of such Event of Default. Subject to the terms and conditions of this Section 1, the Series A-3 Certificate Lender does hereby waive such Event of Designation Default. (e) Borrower hereby acknowledges and agrees that pursuant to Section 3 of Annex I of the Investment AgreementsAgreement it is prohibited from permitting its Cash Velocity to be less than $3,500,000 for the calendar month ending July 31, 2006. Borrower acknowledges and irrevocably authorizes agrees that its Cash Velocity was less than $3,500,000 for the calendar month ending July 31, 2006 which constitutes an Event of Default under the Agreement. Borrower has requested that Lender agree to a waiver of such Event of Default. Subject to the terms and empowers the Company to proceed withconditions of this Section 1, the Proposed Transactions upon the terms Lender does hereby waive such Event of Default. (f) Except as set forth in the Selling Stockholder Purchase Agreementthis Section 1, the Company Purchase foregoing waivers and consents do not extend to the Borrower’s compliance with Section 7.6 or the above referenced sections of Annex I of the Agreement for any subsequent periods. Further, the foregoing does not constitute an agreement by Lender to waive the provisions of any affirmative, negative or financial covenant or other provision of the Agreement at any time in the future or any other Events of Default which may have occurred but which are not referenced within this Section 1. The foregoing waivers and consents shall not imply any obligation or commitment of Lender to provide any further waivers or consents under the Agreement or any of the other Loan Documents to Borrower at any other time and does not constitute a course of dealing or a course of conduct. Lender hereby reserves all of its rights under the Agreement and the Exchange Agreement; and (iv) irrevocably waives, other Loan Documents except with respect to the right of the Stockholders to receive the Shares upon conversion of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights to any other payments, securities, property or consideration of whatever kind or natureas specifically provided in this Section 1.

Waiver and Consent. Each (a) This Subordinated Note may be amended or waived pursuant to, and in accordance with, the provisions set forth herein and as set forth in Section 7.3 of the Stockholders, with respect to itself Purchase Agreement. Any such consent or waiver given by the Noteholder shall be conclusive and binding upon such Noteholder and upon all other subsequent holders of Preferred Stock this Subordinated Note and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned any Subordinated Note issued upon the Closing registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. (as defined b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Selling Stockholder Purchase Agreement)Subordinated Notes shall be effective except with the consent of the Noteholders holding not less than more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, hereby however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) irrevocably waives all Accretion and Allocation Rights with respect to reduce the Proposed Transactions, principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 4(c) (Partial Redemption), Section 6 (Events of Default; Acceleration), Section 7 (Failure to Make Payments), Section 16 (Priority), or Section 18 (Waiver and Consent) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect the rights of any of the holders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not materially adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the Noteholder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. No delay or omission of the Stockholdersholder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Each Noteholder, with respect to itself and all other holders by its acceptance of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing such Subordinated Note (as defined in the Selling Stockholder Purchase Agreementor beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights shall be deemed to have waived any right of offset against the Company with respect to the Proposed Transactionsindebtedness evidenced thereby. No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the holders of more than fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 7 (Redemption), Section 5 (Events of Default; Acceleration), Section 6 (Failure to Make Payments), or Section 16 (Waiver and Consent) of the Series A-2 Certificate Subordinated Notes that adversely affects the rights of Designation, any Noteholder; (vii) disproportionately affect the Series A-3 Certificate rights of Designation and any of the Investment Agreements, and irrevocably authorizes and empowers Noteholders of the then outstanding Subordinated Notes; (viii) permit the Company to proceed with, the Proposed Transactions upon declare or pay any cash dividends while an Event of Default is continuing or; modify the terms set forth of subordination of the affected Subordinated Note in a manner adverse to the Selling Stockholder Purchase Agreementholder. Notwithstanding the foregoing, the Company Purchase Agreement and may amend or supplement the Exchange Agreement; and (iv) irrevocably waives, except with respect to Subordinated Notes without the right consent of the Stockholders Noteholders to receive cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Shares upon conversion rights of any Noteholder. No failure to exercise or delay in exercising, by any Noteholder of the outstanding shares Subordinated Notes, of Preferred Stockany right, power or privilege hereunder shall operate as a waiver thereof, nor shall any interest and single or partial exercise of any and all right, power or privilege preclude any other rights or further exercise thereof, or the Stockholders may have exercise of any other right or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend remedy provided at law or in equity. The rights and rights remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided at law or in equity. No notice or demand on the Company in any case shall, in itself, entitle the Company to any other paymentsor further notice or demand in similar or other circumstances or constitute a waiver of the rights of Noteholders to any other or further action in any circumstances without notice or demand. No consent or waiver, securitiesexpress or implied, property by Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.

Waiver and Consent. Each (a) Any consent or waiver given by the holder of this Subordinated Note shall be conclusive and binding upon such Noteholder and upon all future holders of this Subordinated Note and of any Subordinated Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Subordinated Note. This Subordinated Note may also be amended or waived pursuant to, and in accordance with, the provisions of Section 7.3 of the Stockholders, with respect to itself and all other holders of Preferred Stock and with respect to all outstanding shares of Preferred Stock, including all shares of Preferred Stock beneficially owned by it, effective and conditioned upon the Closing (as defined in the Selling Stockholder Purchase Agreement. No delay or omission of the holder of this Subordinated Note to exercise any right or remedy accruing upon any Event of Default shall impair such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Any insured depository institution which shall be a holder of this Subordinated Note or which otherwise shall have any beneficial ownership interest in this Subordinated Note shall, by its acceptance of such Subordinated Note (or beneficial interest therein), hereby (i) irrevocably waives all Accretion and Allocation Rights be deemed to have waived any right of offset with respect to the Proposed Transactionsrepayment of the indebtedness evidenced thereby. (b) No waiver or amendment of any term, provision, condition, covenant or agreement in the Subordinated Notes shall be effective except with the consent of the Noteholders holding at least fifty percent (50%) in aggregate principal amount (excluding any Subordinated Notes held by the Company or any of its Affiliates) of the Subordinated Notes at the time outstanding; provided, however, that without the consent of each Noteholder of an affected Subordinated Note, no such amendment or waiver may: (i) reduce the principal amount of any Subordinated Note; (ii) irrevocably waives, and elects not to receive reduce the rate of or change the time for payment of interest on any payments that might otherwise be payable upon exercise of, the Investment Agreement Rights with respect to the Unexercised Series A-3 Preferred in connection with the Proposed Transactions, Subordinated Note; (iii) irrevocably consents to for all purposes extend the maturity of any Subordinated Note; (iv) change the currency in which payment of the obligations of the Company under the Series A-1 Certificate Subordinated Notes are to be made; (v) lower the percentage of Designationaggregate principal amount of outstanding Subordinated Notes required to approve any amendment of the Subordinated Notes; (vi) make any changes to Section 6 (Failure to Make Payments) of the Subordinated Notes that adversely affects the rights of any Noteholder; or (vii) disproportionately affect any of the Noteholders of the then outstanding Subordinated Notes. Notwithstanding the foregoing, the Series A-2 Certificate Company may amend or supplement the Subordinated Notes without the consent of Designationthe Noteholders to cure any ambiguity, defect or inconsistency or to provide for uncertificated Subordinated Notes in addition to or in place of certificated Subordinated Notes, or to make any change that does not adversely affect the Series A-3 Certificate rights of Designation any Noteholder of any of the Subordinated Notes. No failure to exercise or delay in exercising, by any Noteholder of the Subordinated Notes, of any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof, or the exercise of any other right or remedy provided by law, except as restricted hereby. The rights and remedies provided in this Subordinated Note are cumulative and not exclusive of any right or remedy provided by law or equity. No notice or demand on the Investment AgreementsCompany in any case shall, and irrevocably authorizes and empowers in itself, entitle the Company to proceed with, the Proposed Transactions upon the terms set forth any other or further notice or demand in the Selling Stockholder Purchase Agreement, the Company Purchase Agreement and the Exchange Agreement; and (iv) irrevocably waives, except with respect to the right similar or other circumstances or constitute a waiver of the Stockholders to receive the Shares upon conversion rights of the outstanding shares of Preferred Stock, any interest and any and all other rights the Stockholders may have or which may accrue to the Stockholders pursuant to the Series A Certificates of Designation, the Investment Agreements and the Registration Rights Agreement by reason of the Company’s entry into and the consummation of the Proposed Transactions, including, without limitation, any rights to notice, rights to written assurances, redemption rights arising out of a Change of Control, consent rights, anti-dilution rights, participation rights, preemptive rights, rights of first offer, voting rights, dividend rights and rights Noteholders to any other paymentsor further action in any circumstances without notice or demand. No consent or waiver, securitiesexpressed or implied, property by the Noteholders to or consideration of whatever kind any breach or naturedefault by the Company in the performance of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of the Company hereunder. Failure on the part of the Noteholders to complain of any acts or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Noteholders of their rights hereunder or impair any rights, powers or remedies on account of any breach or default by the Company.