WARRANT AGREEMENTTABLE OF CONTENTS            Page  SECTION 1. Defined Terms  1        SECTION 2. Warrant Certificates  5        SECTION 3. Issuance of Warrants  5        SECTION 4. Execution of Warrant Certificates  6        SECTION 5. Registration and Countersignature  6        SECTION 6. Transfers and Exchanges  6        SECTION 7. Exercise of Warrants  7        SECTION 8. Adjustment of Number of Warrant Shares Purchasable and Exercise Price  9        SECTION 9. Consolidation, Merger, Equity Exchange, Distributions  13        SECTION 10. Notice of Adjustments  14        SECTION 11. Payment of Taxes  14        SECTION 12. Mutilated or Missing Warrant Certificates  15        SECTION 13. Reservation of Shares  15        SECTION 14. Notices of Certain Corporate Actions  15        SECTION 15. Holders’ Special Rights  16        SECTION 16. Expenses  17        SECTION 17. Representations, Warranties and Covenants of the Company  17        SECTION 18. Registration Rights  19        SECTION 19. Indemnification and Contribution  27        SECTION 20. Notices to the Company and the Holders  29        SECTION 21. Supplements and Amendments  30        SECTION 22. Successors  30        SECTION 23. Termination  30 
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            Page  SECTION 24. Governing Law; Jurisdiction  30        SECTION 25. Benefits of this Warrant Agreement  30        SECTION 26. Counterparts  30        SECTION 27. Enforcement  30        SECTION 28. Further Assurances  31        SECTION 29. Entire Agreement  31 EXHIBIT A — Form of Warrant CertificateEXHIBIT B — Allocation of Warrants
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**WARRANT AGREEMENT**          WARRANT AGREEMENT (this “Warrant Agreement”) dated as of May 18, 2009 by and betweenGrubb & Ellis Company, a Delaware corporation (the “Company”), and the Holders listed inExhibit B.          WHEREAS, the Company is issuing the Warrants in accordance with that certain Third Amended andRestated Credit Agreement, dated as of the date hereof (the “Credit Facility”), by andamong Company, the guarantors named therein, the lenders named therein, Deutsche Bank Trust CompanyAmericas, as syndication agent, Deutsche Bank Securities Inc., as sole book-running manager andsole lead arranger, and Deutsche Bank Trust Company Americas, as initial issuing bank, swing linebank and administrative agent; and          WHEREAS, the Warrants entitle the holders of such Warrants, upon proper exercise, during theExercise Period (as defined in Section 1), to receive from the Company such number ofshares (the “Warrant Shares”) of Company’s common stock, par value $0.01 per share (each, a“Share”) at a price of $0.01 per Share (the “Exercise Price”), that, in theaggregate, after giving effect to the Shares issuable upon the exercise of the Warrants, on October1, 2009, constitute fifteen percent (15%) of the issued and outstanding Shares of the Company on afully diluted basis. The number of Warrant Shares and the Exercise Price shall be subject toadjustment as provided herein. The Warrants shall be allocated among the Holders as provided onExhibit B hereto.          NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,the parties hereto agree as follows:     SECTION 1.  Defined Terms.          “Affiliate” shall mean, with respect to any specified Person, any other Person thatdirectly, or indirectly through one or more intermediaries, controls, is controlled by, or is undercommon control with, such specified Person. The term “control” (including the terms “controlledby”, “controlling” and “under common control with”) shall mean the possession, directly orindirectly, of the power to direct or cause the direction of the management and policies of aPerson, whether through the ownership of voting securities, as trustee or executor, by contract orotherwise, including, without limitation, the ownership, directly or indirectly, of securitieshaving the power to elect a majority of the board of directors or similar body governing theaffairs of such Person.          “Additional Shares” shall mean all Shares issued or sold by the Company on or afterthe date hereof.          “Administrative Agent” shall have the meaning set forth in the Credit Facility.          “Bank Holding Company Affiliate” shall mean, with respect to any Holder that is a BHCAHolder, (a) if such Holder is a bank holding company, any company controlled by such bank holdingcompany or (b) the bank holding company that controls such Holder and any other Person controlledby such bank holding company.          “BHCA Holder” shall mean a bank holding company or a subsidiary of a bank holdingcompany.          “Blackout Period” shall have the meaning set forth in Section 18.3 of thisWarrant Agreement.
 

 
          “Business Day” shall mean any day other than a Saturday, Sunday or a day on whichcommercial banks in the City of New York are authorized or required by law to close.          “Capital Stock” shall mean (a) with respect to any Person that is a corporation, anyand all shares, interests, participations, rights or other equivalents (however designated) ofcorporate stock; and (b) with respect to any other Person, any and all partnership, membership orother equity interests of such Person.          “Code” shall mean the Internal Revenue Code of 1986, as amended.          “Commitments” shall have the meaning set forth in the Credit Facility.          “Company” shall have the meaning set forth in the preamble hereto.          “Credit Facility” shall have the meaning set forth in the preamble hereto.          “Convertible Securities” shall mean evidences of indebtedness or Equity Interestswhich are convertible into or exchangeable or exercisable for Additional Shares, either immediatelyor upon the arrival of a specified date or the happening of a specified event.          “Convertible Security Value” shall mean the fair market value of a ConvertibleSecurity on the date of issuance, determined in good faith by the Company on a reasonable basis,less the proceeds received by the Company for such conversion or exchange.          “Current Market Price” per Share on any date specified herein, shall mean the averagedaily Market Price during the period of the most recent twenty (20) days, ending on such date, onwhich the national securities exchanges were open for trading, except that if no Shares are thenlisted or admitted to trading on any national securities exchange or quoted in the over-the-countermarket, the Current Market Price shall be the Market Price on such date.          “Demand for Registration” shall have the meaning set forth in Section 18.2 ofthis Warrant Agreement.          “Demand Registration” shall have the meaning set forth in Section 18.2 of thisWarrant Agreement.          “Demand Registration Statement” shall have the meaning set forth in Section18.2 of this Warrant Agreement.          “Equity Interests” shall mean Capital Stock or warrants, options or other rights toacquire Capital Stock.          “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and anysimilar or successor federal statute, and the rules and regulations of the SEC thereunder, all asthe same shall be in effect at any applicable time.          “Exempt Issuances” shall mean:          (a) the grant or issuance of the Warrants or the issuance of any Warrant Sharesupon exercise of any Warrant; or
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          (b) issuances or grants which are approved by each Holder as not being subject tothe anti-dilution provisions set forth in this Warrant Agreement.          “Exercise Date” shall have the meaning set forth in Section 7.8 of thisWarrant Agreement.          “Exercise Period” shall mean the period commencing on October 1, 2009 and continuinguntil 5:00 p.m. New York City time on September 30, 2019.          “Exercise Price” shall mean, on the date hereof, the purchase price per Share as setforth in the recitals hereto, and thereafter shall mean such dollar amount as shall result from theadjustment specified in Section 8.          “Expiration Date” shall mean the earlier of (a) 5:00 p.m. New York City time onSeptember 30, 2019, or (b) if the Company completes the Recapitalization Plan, the date suchRecapitalization Plan was completed.          “FINRA” shall mean the Financial Industry Regulatory Authority, Inc.          “Holder” shall mean any Person that is or Persons that are the registered holder(s) ofthe Warrants or Warrant Shares as registered on the Warrant register maintained by the Company inaccordance with this Warrant Agreement.          “KV Agreement” shall mean that certain registration rights agreement dated as of April28, 2006 by and among the Company, Kojaian Ventures L.L.C. and Kojaian Holdings, LLC.          “KV Registration Rights” shall mean those certain registration rights with respect tothe Company’s securities as set forth in the KV Agreement.          “Lender” shall have the meaning set forth in the Credit Facility.          “Loans” shall mean the aggregate principal amount of loans made under the CreditFacility.          “Majority Holders” shall mean Holders of Warrants evidencing a majority in number ofthe total number of Shares at the time purchasable upon the exercise of all then outstandingWarrants.          “Market Price” shall mean, on any date specified herein, the amount per Share equal to(a) if Shares are then listed or admitted to trading on any national securities exchange, the lastsale price of such Share on such date or, if no such sale takes place on such date, the average ofthe closing bid and asked prices thereof on such date, in each case as officially reported on theprincipal national securities exchange on which the Shares are then listed or admitted to trading,(b) if Shares are not then listed or admitted to trading on any national securities exchange butare designated as a national market system security by FINRA, the last trading price of the Shareson such date, (c) if there shall have been no trading on such date or if the Shares are not sodesignated, the average of the closing bid and asked prices of the Shares on such date as shown byFINRA automated quotation system, or (d) if Shares are not then listed or admitted to trading onany national exchange or quoted in the over-the-counter market, the fair value thereof determinedby a nationally recognized investment bank selected by the Company and reasonably acceptable to theHolders.
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          “Maximum Number of Demand Securities” shall have the meaning set forth in Section18.2 of this Warrant Agreement.          “Maximum Number of Securities” shall have the meaning set forth in Section18.1 of this Warrant Agreement.          “Officers” shall mean, with respect to any Person, the Chairman of the Board, theChief Executive Officer, the Chief Financial Officer, the President, the Treasurer, any AssistantTreasurer, the Controller, the Secretary, any Assistant Secretary, or any Vice-President.          “Option” shall mean any warrant, option or other right to subscribe for or purchaseAdditional Shares or Convertible Securities.          “Other Securities” shall mean any Shares (other than Warrant Shares) and other EquitySecurities of the Company or any other Person (corporate or otherwise) which a Holder at any timeshall be entitled to receive, or shall have received, upon exercise of the Warrants held by suchHolder or pursuant to Section 10 hereof, in lieu of or in addition to Warrant Shares, orwhich at any time shall be issuable or shall have been issued in exchange for or in replacement ofWarrant Shares or Other Securities received in an earlier exchange, exercise or replacement ofWarrant Shares.          “Participating Demand Holders” shall have the meaning set forth in Section18.2 of this Warrant Agreement.          “Participating Piggy-Back Holders” shall have the meaning set forth in Section18.1 of this Warrant Agreement.          “Person” shall include an individual, a corporation, an association, a partnership, alimited liability company, a trust or estate, a government, foreign or domestic, and any agency orpolitical subdivision thereof, or any other entity.          “Piggy-Back Registration” shall have the meaning set forth in Section 18.1 ofthis Warrant Agreement.          “Piggy-Back Registration Statement” shall have the meaning set forth in Section18.1 of this Warrant Agreement.          “Qualified Purchaser” shall mean any institutional “Accredited Investor” as defined inRule 501(a)(1), (2), (3) or (7) under the Securities Act.          “Recapitalization Plan” shall have the meaning set forth in the Credit Facility.          “Registrable Securities” shall mean any Warrant Shares and any securities or class ofsecurities issued or issuable with respect to any Warrant Shares by way of a split, dividend, orother division of securities, or in connection with a combination of securities, conversion,exchange, replacement, recapitalization, merger, consolidation, or other reorganization orotherwise.          “Registration Statement” shall mean a Demand Registration Statement, a Piggy-BackRegistration Statement and/or a Shelf Registration Statement, as the case may be.          “Required Lenders” shall have the meaning set forth in the Credit Facility, exceptthat “majority in interest” shall be substituted with “66 2/3% in interest.”
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          “SEC” shall mean the Securities and Exchange Commission.          “Securities Act” shall mean the Securities Act of 1933, as amended, and any similar orsuccessor federal statute, and the rules and regulations of the SEC thereunder, all as the sameshall be in effect at any applicable time.          “Shares” shall have the meaning set forth in the preamble hereto.          “Shelf Registration Statement” shall have the meaning set forth in Section18.2 of this Warrant Agreement.          “Total Holders’ Interest” shall mean a special economic interest in the Companyentitling the Holders to receive fifteen percent (15%) of the aggregate Shares in the Company, onthe fully diluted basis, as such number of Shares representing such right is adjusted in accordancewith Section 9 of this Warrant Agreement.          “Transfer” shall have the meaning set forth in Section 6.1 of this WarrantAgreement.          “Transfer Agent” shall have the meaning set forth in Section 13.2 of thisWarrant Agreement.          “Voting Stock” shall mean any equity security entitling the holder of such security tovote at meetings of shareholders except an equity security which entitles the holder of suchsecurity to vote only upon the occurrence of some contingency, unless that contingency shall haveoccurred and be continuing.          “Warrants” shall mean the warrants issued pursuant to this Warrant Agreement andrepresented by Warrant Certificates, and all warrants issued upon transfer, division or combinationof, or in substitution thereof.          “Warrant Agreement” shall have the meaning set forth in the preamble hereto.          “Warrant Certificates” shall have the meaning set forth in Section 2 of thisWarrant Agreement.          “Warrant Shares” shall have the meaning set forth in the preamble hereto.     SECTION 2. Warrant Certificates. The certificates evidencing the Warrants to bedelivered pursuant to this Warrant Agreement shall be in registered form only and shall besubstantially in the form set forth in Exhibit A attached hereto (“Warrant Certificates”)and may have such letters, numbers, or other marks of identification or designation and suchlegends or endorsements printed, lithographed or engraved thereon as the Officers of the Companyexecuting the same may approve (with execution thereof to be conclusive evidence of such approval)and as are not inconsistent with the provisions of this Warrant Agreement, or as may be required tocomply with any applicable law or with any rule or regulation made pursuant thereto or with anyrule or regulation of any exchange, inter-dealer quotation system or regulated quotation service onwhich the Warrants or the Shares may be listed or quoted, as the case may be.     SECTION 3. Issuance of Warrants. Upon issuance in accordance with Section6, each Warrant Certificate shall evidence one or more Warrants. Each Warrant evidencedthereby entitles the Holder,
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upon proper exercise to receive from the Company the stated number of WarrantShares at the Exercise Price, as adjusted as provided herein.     SECTION 4. Execution of Warrant Certificates.          4.1 Execution by an Officer of the Company. Warrant Certificates shall be signedon behalf of the Company by any Officer thereof under its corporate seal. The seal of the Companymay be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwisereproduced on the Warrant Certificates. The Warrant Certificates may be executed in any number oforiginal, facsimile or electronic counterparts and each of such counterparts shall for all purposesbe deemed to be an original, and all such counterparts shall together constitute but one and thesame instruments; *provided, however*if the Warrant Certificate is executed in counterparts, thecorporate seal may be imprinted on only one such counterpart. Each such signature upon any WarrantCertificate may be of the present or any future Officer of the Company, notwithstanding the factthat at the time any Warrant Certificate shall be delivered or disposed of by the Company suchOfficer shall have ceased to hold such office, so long as, and the Company hereby represents that,under the Company’s Certificate of Incorporation and By-Laws, any Warrants or Warrant Shares soissued would be validly issued. Any Warrant Certificate may be signed on behalf of the Company byany Person who, at the actual date of the execution of such Warrant Certificate, shall be a properOfficer of the Company to sign such Warrant Certificate, although at the date of the execution ofthis Warrant Agreement any such Person was not such Officer, so long as, and the Company herebyrepresents that, under the Company’s Certificate of Incorporation and By-Laws, any Warrants orWarrant Shares so issued would be validly issued.          4.2 Date of Warrant Certificate. Warrant Certificates shall be dated the date ofexecution by the Company and shall represent one or more whole Warrants.     SECTION 5. Registration and Countersignature.          5.1 Warrant Register. The Company shall number and register the WarrantCertificates in a Warrant register as they are issued by the Company. The Warrant register willshow the names and addresses of the Holders, the numbers of Warrants and Warrant Shares evidencedon the face of each Warrant Certificate and the date of each Warrant Certificate.          5.2 Absolute Ownership. The Company may deem and treat the Holders as theabsolute owner(s) of the Warrant Certificates (notwithstanding any notation of ownership or otherwriting thereon made by anyone), for all purposes, and the Company shall not be affected by anynotice to the contrary.     SECTION 6. Transfers and Exchanges.          6.1  Limitation on Transfers.          (a) A Holder may not transfer, assign or encumber all or any part of this Warrant(including through the grant of participation interests) (a “Transfer”).          (b) Notwithstanding the foregoing, a Holder may Transfer all or any portion of thisWarrant to (i) any of its Affiliates or (ii) any Qualified Purchaser who is also a Lender under theCredit Facility; providedhowever that any such transfer pursuant to clause (b)(ii)would not, after giving effect to such transfer, result in such transferee owning a greater or alesser percentage of outstanding Warrants than such transferee’s pro rata share of Commitmentsunder the Credit Facility, and providedfurther that in each case (i) and (ii) above the transferee shall agree in writing tobe bound by the terms of this
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Warrant Agreement, and such transfer shall be in compliance withSection 23A of the Federal Reserve Act and the Securities Act or any state (or other jurisdiction)securities or “blue sky” laws applicable to the Company or the Warrants. Notwithstanding theforegoing, (x) upon receipt of the consent of the Administrative Agent and Required Lenders or (y)so long as all obligations under the Credit Facility have been repaid or terminated, a Holder maytransfer all or any portion of this Warrant to any Qualified Purchaser without any limitations onthe number of Warrants so transferred imposed by clause (b)(ii) above.          (c) Any purported Transfer other than in accordance with the terms of this WarrantAgreement shall be null and void, and the Company shall refuse to recognize any such Transfer forany purpose and shall not reflect in its records any change in record ownership pursuant to anysuch Transfer.          6.2 Registration of Transfers. The Company shall from time to time register thetransfer of any outstanding Warrant Certificates upon the records to be maintained by it for thatpurpose, upon surrender thereof accompanied by a written instrument or instruments of transfer inform satisfactory to the Company, duly executed by the Holders thereof or by the duly appointedlegal representative thereof or by a duly authorized attorney. Upon any such registration oftransfer, a new Warrant Certificate shall be issued to the transferee(s) and the surrenderedWarrant Certificate shall be cancelled by the Company. Cancelled Warrant Certificates shallthereafter be disposed of by or at the direction of the Company in accordance with applicable law.          6.3 Exchange of Warrant Certificates. Warrant Certificates may be exchanged atthe option of the Holder(s), when surrendered to the Company during normal business hours foranother Warrant Certificate or other Warrant Certificates of like tenor and representing in theaggregate a like number of Warrants. Warrant Certificates surrendered for exchange shall becancelled by the Company. Such cancelled Warrant Certificates shall then be disposed of by theCompany in accordance with applicable law.     SECTION 7. Exercise of Warrants.          7.1 Exercise of Warrants. A Warrant may be exercised upon surrender to theCompany of the Warrant Certificate or Warrant Certificates evidencing the Warrants to be exercisedwith the form of election to purchase on the reverse thereof duly completed and signed, and uponpayment to the Company of the Exercise Price, as adjusted from time to time as provided herein, foreach Warrant Share then purchased. Payment of the aggregate Exercise Price for all Warrant Sharesbeing purchased in respect of a Warrant shall be made (a) by wire transfer of immediately availablefunds in United States Dollars or (b) by certified or official bank check for United States Dollarsmade payable to the order of the Company. Each Warrant not exercised prior to the Expiration Dateshall become void and all rights thereunder and all rights in respect thereof under this WarrantAgreement shall cease as of such time.          7.2 Issuance of Certificates Representing Shares. Upon such surrender of Warrantsand payment of the aggregate Exercise Price, the Company shall issue and cause to be deliveredpromptly to or upon the written order of the Holder and in such name or names, as the Holder maydesignate, a certificate or certificates for the number of full Warrant Shares issuable upon theexercise of such Warrants. Such certificate or certificates shall be deemed to have been issuedand any person so designated to be named therein shall be deemed to have become a Holder of suchWarrant Shares as of the date of the surrender of such Warrants and payment of the aggregateExercise Price.          7.3 Issuance of New Warrant Certificates. The Warrants shall be exercisable atthe election of the Holders either in full or from time to time in part (in whole Warrant Shares)and, in the event that a Warrant Certificate evidencing Warrants is exercised in respect of fewerthan all of the
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Warrant Shares issuable on such exercise at any time prior to the Expiration Date,a new Warrant Certificate evidencing the remaining Warrant or Warrants will be promptly issued, andthe Company, whenever required under this Warrant Agreement, will provide Warrant Certificates dulyexecuted on behalf of the Company for such purpose.          7.4 Cancellation of Warrant Certificates. All Warrant Certificates surrenderedupon exercise of Warrants shall be cancelled and disposed of by the Company in accordance withapplicable law.          7.5 Warrant Agreement. The Company shall keep copies of this Warrant Agreementand any notices given or received hereunder available for inspection by the Holders of the Warrantsduring normal business hours at its office. The Company shall supply the Holder from time to timewith such numbers of copies of this Warrant Agreement as the Holders may request.          7.6 Alternative Cashless Exercise. Notwithstanding any provision herein to thecontrary, in lieu of exercising a Warrant as set forth above, a Holder may exercise a Warrant byelecting to receive that number of Shares as determined below by surrendering to the Company suchWarrant, with the applicable election to purchase Shares duly completed and signed by the Holder,in which event the Company shall issue to the Holder the number of Shares computed using thefollowing formula:               *CS  * *=* *WCS  * *x* *( MP – PP ) *      *MP*  where:     “CS” equals the number of Shares to be issued to the Holder;     “WCS” equals the number of Warrant Shares purchasable under the Warrant or, if only aportion of the Warrant is being exercised, the portion of the Warrant being exercised;     “MP” equals the Current Market Price per Share; and     “PP” equals the Exercise Price.Following the surrender of any Warrant pursuant to this Section 7.6, the Company shallpromptly record the name of the Holder in the Warrant register for that number of Shares, ascalculated above in such name or names as may be designated by such Holder.          7.7 Fractional Shares. The Company shall not be required to issue fractionalWarrant Shares on the exercise of any Warrant. If more than one Warrant shall be presented forexercise in full at the same time by the same Holder, the number of full Warrant Shares which shallbe issuable upon the exercise thereof shall be computed on the basis of the aggregate number ofWarrant Shares purchasable on exercise of the Warrants so presented. If any fraction of a WarrantShare would, except for the provisions of this Section 7.7 be issuable on the exercise ofany Warrants (or specified portion thereof), the Company shall pay an amount in cash equal to theMarket Price multiplied by such fraction.          7.8 When Exercise Effective. The exercise of any Warrant shall be deemed to havebeen effective immediately prior to the close of business on the Business Day on which such Warrantis surrendered to and the Exercise Price is received by the Company as provided in this Section7 (the
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“Exercise Date”) and the Person in whose name the Shares shall be issuable uponsuch exercise shall be deemed to be the Holder of such Shares for all purposes on the ExerciseDate.          7.9 Continued Validity. A Holder of Shares issued upon the exercise of anyWarrant, in whole or in part, shall continue to be entitled to all of the rights and subject to allof the obligations set forth in the Company’s Certificate of Incorporation and By-Laws.          7.10 BHCA Holders. If a Holder is a BHCA Holder, unless such Holder is afinancial holding company and exercises such Warrant in reliance on, and in compliance with, themerchant banking exemption set forth in Regulation Y, such Holder shall not, and shall not permitany of its Bank Holding Company Affiliates to, exercise any Warrant if, after giving effect to suchexercise, (a) such Holder and its Bank Holding Company Affiliates would own more than five percent(5%) of the total issued and outstanding Shares on a fully-diluted basis or (b) such Holder wouldbe deemed under Regulation Y to have the power to exercise, directly or indirectly, a controllinginfluence over the management or policies of, or would otherwise control, the Company. Forpurposes of clause (b) of this Section 7.10, a reasoned opinion of counsel to such Holderdelivered to such Holder (which is based on facts and circumstances deemed appropriate by suchcounsel) to the effect that such Holder does not have the power to exercise such a controllinginfluence or otherwise control the Company shall be conclusive.     SECTION 8. Adjustment of Number of Warrant Shares Purchasable and ExercisePrice. The number of Warrant Shares purchasable upon exercise of the Warrants and the ExercisePrice shall be subject to adjustment from time to time as set forth in this Section 8. Allof the adjustments referred to in this Section 8 shall only apply to Warrants which havenot yet been exercised and shall not apply to Exempt Issuances. The Company shall not create anyclass of Shares which carries any rights to dividends or assets differing in any respect from therights of the Shares, except as such classes of Shares, if any, may be in existence on the datehereof.          8.1  Share Dividends, Subdivisions and Combinations. If at any time the Company shall:          (a) declare or pay a dividend payable in Additional Shares;          (b) subdivide or reclassify its outstanding Shares into a greater number of Shares; or          (c) combine or reclassify its outstanding Shares into a smaller number of Shares;then the number of Warrant Shares purchasable upon exercise of the Warrants immediately after theoccurrence of any such event shall be adjusted to equal the number of Warrant Shares which a recordholder of the number of Warrant Shares purchasable upon exercise of the Warrants immediately priorto the happening of such event would own or be entitled to receive after the happening of suchevent.          8.2 Issuance of Additional Shares. If at any time the Company shall (except ashereinafter provided) issue or sell any Additional Shares in exchange for consideration in anamount per Additional Share less than the Current Market Price at the time the Additional Sharesare issued, then the number of Warrant Shares thereafter purchasable upon exercise of the Warrantsshall be adjusted tothat number determined by multiplying the number of Warrant Shares purchasable upon exercise of theWarrants immediately prior to such adjustment by a fraction (a) the numerator of which shall be thenumber of Shares outstanding immediately prior to the issuance of such Additional Sharesplus the number of such Additional Shares so issued, and (b) the denominator of which shallbe the number of Shares outstanding immediately prior to the issuance of such Additional Sharesplus the number of Shares
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which the aggregate consideration for the total number of suchAdditional Shares so issued would purchase at the Current Market Price. For purposes of thisSection 8.2, for all issuances of Shares except for those Shares issued in connection withan acquisition of assets or securities, a tender or exchange offer, a merger or other businesscombination, the date as of which the Current Market Price shall be computed shall be the earlierof (i) the date on which the Company shall enter into a firm contract for the issuance of suchAdditional Shares and (ii) the date of actual issuance of such Additional Shares. Subject toSection 8.5 hereof, no further adjustment of the number of Warrant Shares purchasable uponexercise of the Warrants shall be made under this Section 8.2 upon the issuance of anyAdditional Shares:          (a) for which an adjustment is provided under Section 8.1 hereof;          (b) which are issued pursuant to the exercise of any Options or the conversion, exchangeor exercise of any Convertible Securities, if any such adjustment shall previously have been madeupon the issuance of such Options or Convertible Securities (or upon the issuance of any Optiontherefor) pursuant to Section 8.3 or 8.4 hereof; or          (c) as a distribution or a dividend which is distributed or declared and paid inaccordance with Section 9.2 hereof.          8.3 Issuance of Options. If at any time the Company shall issue or sell, or shall fixa record date for the determination of holders of any class of securities entitled to receive, anyOptions, whether or not the rights to purchase thereunder are immediately exercisable, and theconsideration received by the Company in payment for such Options (determined in accordance withSection 8.6(a) hereof) shall be less than the Current Market Price in effect on the date ofand immediately prior to such issuance, sale or fixing of a record date, then the number of WarrantShares thereafter purchasable upon exercise of the Warrants shall be adjusted as provided inSection 8.2 hereof on the basis that (a) the maximum number of Additional Shares issuablepursuant to all such Options shall be deemed to have been issued as of (and, accordingly, the dateas of which the Current Market Price shall be computed shall be) the computation date specified inthe next succeeding sentence of this Section 8.3, and (b) the aggregate consideration forsuch maximum number of Additional Shares shall be (subject to Section 8.5 hereof) theconsideration received by the Company for the issuance or sale of such Additional Shares pursuantto the terms of such Options or pursuant to the terms of such Convertible Securities. For purposesof this Section 8.3, the computation date for clause (a) above shall be the earlier of (i)the date on which the Company shall take a record of the holders of its Shares for the purpose ofentitling them to receive any such Options, (ii) the date on which the Company shall enter into afirm contract for the issuance or sale of such Options and (iii) the date on which the Companyshall issue or sell such Options. No further adjustment of the number of Warrant Sharespurchasable upon exercise of the Warrants shall be made under this Section 8.3 upon theissuance or sale of any Options to subscribe for or purchase any Additional Shares or anyConvertible Securities or upon the subsequent issue or sale of Additional Shares upon the exerciseof such Options, if any such adjustment shall previously have been made upon the issuance or saleof such Option or upon the setting of a record date therefor, or upon any deemed issuance or saleof such Additional Shares, as a distribution or a dividend which is distributed or declared andpaid in accordance with Section 9.2 hereof. Notwithstanding the foregoing, any issuance ofan Option which is issued together with a debt security of the Company, as a unit, shall be treatedfor the purpose of this Section 8 as the issuance of a Convertible Security.          8.4 Issuance of Convertible Securities. If at any time the Company shall issue or sellany Convertible Securities, whether or not the rights to exchange or convert thereunder areimmediately exercisable, and the consideration received by the Company in payment for suchConvertible Securities shall be less than the Convertible Security Value thereof, then the numberof Warrant Shares thereafter purchasable upon exercise of the Warrants shall be increased to anumber of Shares having a value
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immediately following the computation date (as established below)equal to the value of the number of Warrant Shares purchasable upon exercise of the Warrantsimmediately before such increase. For this purpose, the value before the increase will be theCurrent Market Price of the Shares (determined as at the date immediately preceding such increase)dividedby the number of Shares outstanding on a fully diluted basis, and the valueimmediately following the computation date shall be the foregoing value, except that the numeratorshall be the Current Market Price plus the cash amount paid to the Company for suchConvertible Securities less the Convertible Security Value of such Convertible Securitieson issuance and the denominator shall be increased by the number of Additional Shares issuable onexercise of such Convertible Securities. For purposes of this Section 8.4, the computationdate shall be the earliest of (i) the date on which the Company shall take a record of the holdersof its Shares for the purpose of entitling them to receive any such Convertible Securities, (ii)the date on which the Company shall enter into a firm contract for the issuance or sale of suchConvertible Securities and (iii) the date of actual issuance or sale of such ConvertibleSecurities. No further adjustment of the number of Warrant Shares purchasable upon exercise of theWarrants shall be made under this Section 8.4 upon the issuance or sale of any ConvertibleSecurities or the conversion or exchange of such Convertible Securities into Additional Shares:          (a) which are issued or sold pursuant to the exercise of any Option therefor, if any suchadjustment shall previously have been made upon the issuance or sale of an Option relating to suchConvertible Securities pursuant to Section 8.3 hereof; or          (b) if any such adjustment in respect thereof shall previously have been made upon thesetting of a record date therefor, or upon any deemed issuance or sale of such ConvertibleSecurities; or          (c) as a distribution or a dividend which is distributed or declared and paid inaccordance with Section 9.2 hereof.          8.5 Superseding Adjustment of Warrant Share. If, at any time after any adjustment ofthe number of Warrant Shares purchasable upon exercise of the Warrants shall have been madepursuant to Section 8.3 or 8.4 hereof as a result of the issuance of Options orConvertible Securities, or after any new adjustment of the number of Warrant Shares purchasableupon exercise of the Warrants shall have been made pursuant to this Section 8.5, (a) suchOptions or the right of conversion, exchange or exercise of such Convertible Securities shallexpire, and all or a portion of such Options or the right of conversion, exchange or exercise withrespect to all or a portion of such Convertible Securities, as the case may be, shall not have beenexercised or treated as having been exercised or otherwise canceled or acquired by the Company inconnection with any settlement (including, without limitation, any cash settlement) of such Optionsor the rights of conversion, or exchange or exercise of such convertible Securities, or (b) therehas been any change (whether by the passage of time or otherwise) in the number of Shares issuableupon exercise, conversion or exchange of such Options or Convertible Securities (including as aresult of the operation of anti-dilution provisions applicable thereto), or (c) the considerationper Share, for which Additional Shares are issuable pursuant to such Options or the terms of anyConvertible Securities, or the maturity of any such Convertible Security, shall be changed (whetherby the passage of time or otherwise) then such previous adjustment shall be rescinded and annulledand the Additional Shares which were deemed to have been issued by virtue of the computation madein connection with the adjustment so rescinded and annulled shall no longer be deemed to have beenissued by virtue of such computation. Thereupon, a recomputation shall be made of the effect ofsuch Options or Convertible Securities on the basis of:          (a) treating the number of Additional Shares, if any, theretofore actually issued or soldpursuant to the previous exercise of such Options or such right of conversion or exchange, ashaving
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been issued or sold on the date or dates of such issuance as determined for purposes of suchprevious adjustment and for the consideration actually received therefor;          (b) treating the maximum number of Additional Shares (A) issuable pursuant to all Optionswhich then remain outstanding and (B) necessary to effect the conversion or exchange of allConvertible Securities which then remain outstanding, as having been issued (subject, however, tofurther adjustment under this Section 8.5); and          (c) making the computations called for in Section 8.4 hereof on the basis of therevised terms of such Convertible Securities as if the securities being subject to recomputationwere newly issued as of the relevant recomputation date and, if and to the extent called for by theforegoing provisions of this Section 8 on the basis aforesaid, a new adjustment of thenumber of Warrant Shares purchasable upon exercise of the Warrants shall be made, and such newadjustment shall supersede the previous adjustment so rescinded and annulled.          8.6 Other Provisions Applicable to Adjustments Under this Section 8. The followingprovisions shall be applicable to the making of adjustments of the number of Warrant Sharespurchasable upon exercise of the Warrants hereinbefore provided for in this Section 8,irrespective of the accounting treatment of any consideration described below:          (a) Computation of Consideration. To the extent that any Additional Shares, anyOptions or any Convertible Securities shall be issued for cash consideration, the considerationreceived by the Company therefor shall be deemed to be the amount of cash received by the Companytherefor, or, if such Additional Shares, Options or Convertible Securities are offered by theCompany for subscription, the subscription price, or, if such Additional Shares, Options orConvertible Securities are sold to underwriters or dealers for public offering without asubscription offering, the initial public offering price. To the extent that such issuance or saleshall be for consideration other than cash, then the amount of such consideration shall be deemedto be the fair market value of such consideration at the time of such issuance, as determined ingood faith by the board of directors of the Company, whose determination shall be described in aduly adopted resolution certified by the Company’s Secretary or Assistant Secretary. Theconsideration for any Additional Shares issuable pursuant to any Option to subscribe for orpurchase the same shall be the consideration received or receivable by the Company for the sale orissuance of such Option plus the additional consideration payable to the Company upon the exercisethereof in full. The consideration for any Additional Shares issuable pursuant to the terms of anyConvertible Securities shall be the consideration paid or payable to the Company in respect of thesubscription for, sale or issuance of such Convertible Securities plus the additional considerationpayable to the Company upon the conversion or exchange thereof in full. In case of the issuance atany time of any Additional Shares in payment or satisfaction of any dividend upon any class ofsecurities other than Shares, the Company shall be deemed to have received for such AdditionalShares consideration equal to the amount of such dividend so paid or satisfied.          (b) When Adjustments to be Made. The adjustments required by this Section8 shall be made whenever and as often as any specified event requiring an adjustment shalloccur. For the purpose of any adjustment, any specified event shall be deemed to have occurred at theclose of business on the date of its occurrence.          (c) Fractional Interests. In computing adjustments under this Section 8,fractional interests in Shares shall be taken into account to the nearest one-hundredth of a Share.          (d) When Adjustment Not Required. If the Company shall take a record of theholders of its Shares for the purpose of entitling them to receive a dividend or distribution orsubscription
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or purchase rights and shall, thereafter and before the distribution thereof to theholders of the Shares of the Company, legally abandon its plan to pay or deliver such dividend,distribution, subscription or purchase rights, then no adjustment shall be required by reason ofthe taking of such record and any such adjustment previously made in respect thereof shall berescinded and annulled, and no adjustment in the number of Warrant Shares thereafter purchasableupon exercise of the Warrants under Section 8.2, 8.3 or 8.4 hereof shall bemade in respect of the Warrants held by such Holder.          8.7 Adjustments of Exercise Price. Whenever the number of Warrant Shares purchasableupon the exercise of the Warrant is adjusted, as herein provided, the Exercise Price per WarrantShare payable upon exercise of the Warrant shall be adjusted (calculated to the nearest $.0001) sothat it shall equal the price determined by multiplying the Exercise Price immediately prior tosuch adjustment by a fraction, the numerator of which shall be the aggregate number of WarrantShares purchasable upon the exercise of the Warrant immediately prior to such adjustment, and thedenominator of which shall be the aggregate number of Warrant Shares so purchasable immediatelythereafter.     SECTION 9. Consolidation, Merger, Equity Exchange, Distributions. Theprovisions set forth in this Section 9 shall only apply to Warrants which have not yet beenexercised.          9.1 Consolidation, Merger, Equity Exchange, etc. In case a consolidation, mergeror equity exchange of the Company shall be effected with another Person after the date hereof andthe Company shall not be the surviving entity, or the Company shall be the surviving entity but itsShares shall be changed into securities or other property of another Person, or the sale, lease ortransfer of all or substantially all of its assets to another Person shall be effected after thedate hereof, then, as a condition of such consolidation, merger, equity exchange, sale, lease ortransfer, lawful and adequate provision shall be made whereby each Holder shall thereafter have theright to purchase and receive, upon the exercise of its Warrants, on the basis and the terms andconditions specified herein (and in lieu of each Warrant Share immediately theretofore purchasableand receivable upon the exercise of the Warrants), such securities, cash or other propertyreceivable upon such consolidation, merger, equity exchange, sale, lease or transfer as such Holderwould have been entitled to receive if its Warrants had been exercised immediately prior to suchevent. In any such case, appropriate and equitable provision also shall be made with respect tothe rights and interests of each Holder to the end that the provisions hereof (includingSection 8 hereof) shall thereafter be applicable, as nearly as may be, in relation to anysecurities, cash or other property thereafter deliverable upon the exercise of any Warrants. TheCompany shall not effect any such consolidation, merger, equity exchange, sale, lease or transferunless prior to or simultaneously with the consummation thereof the successor Person (if other thanthe Company) resulting from such consolidation, merger or equity exchange or the Person purchasing,leasing or otherwise acquiring such assets shall assume, by written instrument, the obligation todeliver to such Holder such securities, cash or other property as, in accordance with the foregoingprovisions, such Holder may be entitled to upon the exercise of its Warrants. The above provisionsof this Section 9.1 shall similarly apply to successive consolidations, mergers, equityexchanges, sales, leases or transfers.          9.2 Distributions upon Declaration of Dividend or Other Distribution. In case theCompany shall pay, upon the declaration and payment of any dividend or distribution (whether suchdividend or distribution is in the form of cash, debt securities, equity securities or otherproperty) on any class of Shares, then, in each case, the number of Warrant Shares purchasableafter the record date for such distribution upon the exercise of each Warrant shall be determinedby multiplying the number of Warrant Shares purchasable upon the exercise of such Warrantimmediately prior to such record date by a fraction, the numerator of which shall be the CurrentMarket Price per Share immediately prior to the record date for such distribution and thedenominator of which shall be the Current Market Price per Share immediately prior to the recorddate for such distribution less the amount of cash distributed or the then fair market value (asdetermined in good faith by the board of directors of the Company on a
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reasonable basis) such debtsecurities, equity securities or other property so distributed attributable to one Share; *provided*,*however*, that in lieu of making the foregoing adjustment the Company may make the same or a likedistribution to the Holders of the Warrants as if their Warrants had been exercised on the dayimmediately preceding the record date of such distribution on the terms (subject to any adjustmentpursuant to Section 8 for a prior event) on which such Warrants could have been exercisedon such date.          Such adjustment shall be made whenever any such distribution is made, and shall becomeeffective on the date of distribution retroactive to the record date for the determination ofshareholders entitled to receive such distribution.          9.3 Dilution in Case of Other Securities. In case any Other Securities shall be issuedor sold or shall become subject to issue or sale upon the conversion or exchange of any Shares (orOther Securities) of the Company (or any issuer of Other Securities or any other Person referred toin Section 9.1 hereof) or to subscription, purchase or other acquisition pursuant to anyrights, options, warrants to subscribe for, purchase or otherwise acquire either Additional Sharesor securities directly or indirectly convertible into or exchangeable for Additional Shares, issuedor granted by the Company (or any such other issuer or Person) for a consideration such as todilute, on a basis consistent with the standards established in the other provisions of Section9 hereof, the purchase rights granted by the Warrants, then, and in each such case, thecomputations, adjustments and readjustments provided for in said Section 8 with respect tothe Warrant Shares shall be made as nearly as possible in the manner so provided and applied todetermine the amount of Other Securities from time to time receivable upon the exercise of theWarrants, so as to protect the Holders against the effect of such dilution; or, in the event suchOther Securities are issued or sold prior to the exercise of any Warrants and are not subsequentlyobtainable upon exercise of such Warrants, such adjustments shall instead be made to determine theadjusted amount of Shares represented by a Warrant Share, so as to protect the Holders against theeffect of such dilution in accordance with Section 8 hereof.     SECTION 10. Notice of Adjustments. Whenever the number of Warrant Sharespurchasable upon exercise of the Warrants or the Exercise Price shall be adjusted pursuant toSection 9, the Company shall forthwith provide a certificate signed by its Chief FinancialOfficer, setting forth, in reasonable detail, the event requiring the adjustment and the method bywhich such adjustment was calculated (including a statement of the fair value, as determined ingood faith by the board of directors of the Company, whose determination shall be described in aduly adopted resolution certified by the Company’s Secretary or Assistant Secretary, or byappraisal (if applicable), of any evidences of indebtedness, securities, property, warrants orother subscription or purchase rights referred to in Section 8) and specifying the numberof Warrant Shares purchasable upon exercise of the Warrants and describing the number and kind ofany other securities issuable upon exercise of the Warrants, and any change in the Exercise Priceor prices thereof, after giving effect to such adjustment or change. The Company shall promptly,and in any case within three (3) Business Days after the making of such adjustment, cause a signedcopy of such certificate to be delivered to each Holder in accordance with Section 20. TheCompany shall keep at its principal executive offices referred to in Section 20 copies ofall such certificates and cause the same to be available for inspection at said office duringnormal business hours by any Holder or any prospective purchaser of a Warrant designated by aHolder.     SECTION 11. Payment of Taxes. No service charge shall be made to anyHolder for any exercise, exchange or registration of transfer of Warrant Certificates, and theCompany will pay all documentary stamp taxes attributable to the initial issuance of Warrant Sharesupon the exercise of Warrants; provided, however, that the Company shall not berequired to pay any tax or taxes which may be payable in respect of any transfer involved in theissue of any Warrant Certificates or any certificates for Warrant Shares in a name other than thatof the registered holder of a Warrant
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Certificate surrendered upon the exercise of a Warrant, andthe Company shall not be required to issue or deliver such Warrant Certificates or the certificatesrepresenting the Shares unless or until the Person or Persons requesting the issuance thereof shallhave paid to the Company the amount of such tax or shall have established to the satisfaction ofthe Company that such tax has been paid.     SECTION 12. Mutilated or Missing Warrant Certificates. If any of theWarrant Certificates shall be mutilated, lost, stolen or destroyed, the Company shall issue, inexchange and substitution for and upon cancellation of the mutilated Warrant Certificate, or inlieu of and substitution for the Warrant Certificate lost, stolen or destroyed, a new WarrantCertificate of like date and tenor and representing an equivalent number of Warrants, but only uponreceipt of evidence satisfactory to the Company of such loss, theft or destruction of such WarrantCertificate and such indemnity and security therefor as is customary and reasonably satisfactory tothe Company, if requested. Applicants for such substitute Warrant Certificate shall also complywith such other reasonable regulations and pay such other reasonable charges as the Company mayprescribe.     SECTION 13. Reservation of Shares.          13.1 Reservation of Shares. The Company will, commencing on the first day of theExercise Period and at all times subsequent thereto until the sooner of the expiration of theExercise Period or the exercise of all of the Warrants by the Holders thereof, reserve and keepavailable, free from preemptive rights, out of the aggregate of its authorized but unissued Shares,for the purpose of enabling it to satisfy any obligation to issue Warrant Shares upon exercise ofWarrants, the maximum number of Shares which may then be deliverable upon the exercise of alloutstanding Warrants.          13.2 Transfer Agent. The Company or the transfer agent for the Shares and everysubsequent transfer agent for any Shares issuable upon the exercise of any of the rights ofpurchase represented by the Warrants as aforesaid (the “Transfer Agent”) will beirrevocably authorized and directed at all times commencing on the first day of the ExercisePeriod, and continuing until the sooner of the expiration of the Exercise Period or the exercise ofall of the Warrants by the Holders thereof, to reserve such number of authorized Shares as shall berequired for such purpose. The Company will keep a copy of this Warrant Agreement on file with theTransfer Agent for any Shares issuable upon the exercise of the rights of purchase represented bythe Warrants. The Company will supply such Transfer Agent with duly executed certificates for suchpurposes and will provide or otherwise make available any cash which may be payable as provided inSection 7.7. The Company will furnish such Transfer Agent a copy of all notices ofadjustments and certificates related thereto, transmitted to each Holder pursuant to Section14.          13.3 Valid Issuance of Warrant Shares. Before taking any action which wouldcause an adjustment pursuant to Section 8 hereof to reduce the Exercise Price below thethen par value of the Warrant Shares, the Company shall take all corporate action necessary, in theopinion of itscounsel (which may be counsel employed by the Company), in order that the Company may validlyand legally issue fully paid and nonassessable Warrant Shares at the Exercise Price as so adjusted.          13.4 Shares Fully Paid and Nonassessable. The Company covenants that all WarrantShares which may be issued upon exercise of Warrants will be, upon payment of the aggregateExercise Price and issuance thereof, fully paid, nonassessable, free of preemptive rights and freefrom all taxes, liens, charges and security interests with respect to the issue thereof.     SECTION 14. Notices of Certain Corporate Actions        14.1. In case:
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          (i) the Company shall authorize the issuance to all holders of Shares ofoptions, warrants or other rights (howsoever classified) to subscribe for orpurchase Shares or of any other subscription rights or warrants;          (ii) the Company shall authorize the distribution to all holders of Sharesof evidences of its indebtedness or assets (including cash dividends);          (iii) the Company shall authorize any other action that is covered bySections 8.1, 8.2, 8.3, 8.4, 8.5 orSection 9 hereof;          (iv) of any consolidation or merger to which the Company is a party andfor which approval of any stockholders of the Company is required, or of the sale,lease, exchange, conveyance or transfer of the properties and assets of the Companysubstantially as an entirety, or of any reclassification or change of Sharesissuable upon exercise of the Warrants (other than a change in par value, or frompar value to no par value, or from no par value to par value, or as a result of asubdivision or combination), or a tender offer or exchange offer for Shares; or          (v) of the voluntary or involuntary dissolution, liquidation or winding upof the Company;then, in each case, the Company shall cause to be delivered to each Holder at his address appearingon the Warrant register, at least fifteen (15) Business Days prior to the applicable record datehereinafter specified, or promptly in the case of events for which there is no record date, byfirst-class mail, postage prepaid, a written notice stating (i) the date as of which the Holders tobe entitled to receive any such rights, options, warrants or distribution are to be determined or(ii) the initial expiration date set forth in any tender offer or exchange offer for Shares or(iii) the date on which any such consolidation, merger, conveyance, transfer, dissolution,liquidation or winding up is expected to become effective or consummated, and the date as of whichit is expected that Holders shall be entitled to exchange such Shares for securities or otherproperty, if any, deliverable upon such reclassification, consolidation, merger, conveyance,transfer, dissolution, liquidation or winding up. The failure to give the notice required by thisSection 14 or any defect therein shall not affect the legality or validity of anydistribution, right, option, warrant, consolidation, merger, conveyance, transfer, lease,dissolution, liquidation or winding up, or the vote upon any action.     SECTION 15. Holders’ Special Rights.          15.1 Inspection Rights. If the Credit Facility is terminated or is no longer ineffect or the Company or any party acting on its behalf disaffirms the Company’s obligations underthe Credit Facility, then, as and when reasonably requested by the Holders, the Company shallprovide to each Holder or the agents or representatives of such Holder all information and/oraccess to all information in respect of the Company and its subsidiaries.          15.2 Financial Reports*.*(A) The Company will file with the SEC, to the extent permitted, such quarterly and annual reportsand such information, documents and other reports specified in Sections 13 and 15(d) of theExchange Act within the time periods specified in those sections. The Company will promptly deliverto Holders, but in any event no later than 15 days after the filing of the same with the SEC,copies of the quarterly and annual reports and of the information, documents and other reports, ifany, which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of theExchange Act. For purposes of this
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covenant, the Company will be deemed to have furnished allrequired reports and information referred to in this paragraph to the Holders as required by thiscovenant if it has timely filed the reports referred to in this paragraph with the SEC via theEDGAR filing system and such reports are publicly available.(B) For so long as any Warrants remain outstanding and the Company is not subject to the reportingrequirements of Section 13 or 15(d) of the Exchange Act, the Company will furnish to each Holderthe following reports:          (a) as soon as available and in any event within forty-five (45) days after the end of each ofthe first three quarters of each fiscal year of the Company, consolidated balance sheets of theCompany and its subsidiaries as of the end of such period, and consolidated statements of incomeand cash flows of the Company and its subsidiaries for the period then ended prepared in conformitywith generally accepted accounting principles in the United States applied on a consistent basis,except as otherwise noted therein, and which financial statements have been reviewed by theCompany’s independent registered public accounting firm of an established national reputation inaccordance with procedures as described in SAS No. 100, *Interim Financial Information*;          (b) as soon as available and in any event within ninety (90) days after the end of each fiscalyear of the Company, a consolidated balance sheet of the Company and its subsidiaries as of the endof such year, and consolidated statements of income and cash flows of the Company and itssubsidiaries for the year then ended prepared in conformity with generally accepted accountingprinciples in the United States applied on a consistent basis, except as otherwise noted therein,together with an auditor’s report from the Company’s independent registered public accounting firmof an established national reputation;          (c) to the extent the Company is required by law or pursuant to the terms of any outstandingindebtedness of the Company to prepare such reports, any annual reports, quarterly reports andother periodic reports pursuant to Section 13 or 15(d) of the Exchange Act actually prepared by theCompany as soon as available; and          (d) to the extent the Company makes a general distribution of other information and documentsto the holders of any of its securities, such information and documents shall also be provided tothe Holders.     SECTION 16. Expenses. All expenses incident to the Company’s performance of orcompliance with this Warrant Agreement will be borne by the Company, including without limitation:(a) all expenses of printing Warrant Certificates; (b) messenger and delivery services andtelephone calls; (c) all fees and disbursements of counsel for the Company; (d) all fees anddisbursements of independent certified public accountants or knowledgeable experts selected by theCompany; and (e) the Company’s internal expenses (including, without limitation, all salaries andexpenses of their officers and employees performing legal or accounting duties).     SECTION 17. Representations, Warranties and Covenants of the Company. TheCompany represents, warrants and covenants the following to each Holder:          17.1 The Company has all requisite power and authority to execute, deliver and performits obligations under the Warrant Agreement and the Warrants.          17.2 This Warrant Agreement has been duly authorized, executed and delivered by theCompany and, assuming due authorization, execution and delivery by the Holders listed in Exhibit Bhereto, constitutes a valid and binding agreement of the Company.
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          17.3 The Warrants have been duly authorized by the Company and when duly executed by theCompany in accordance with the terms of this Warrant Agreement will have been validly issued anddelivered, and will constitute valid and binding obligations of the Company, exercisable againstthe Company in accordance with their terms, subject to the effects of bankruptcy, insolvency,reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affectingcreditors’ rights generally, and to general equitable principles (whether considered in aproceeding in equity or at law).          17.4 The execution and delivery by the Company of this Warrant Agreement and the WarrantCertificates do not, and the consummation and performance of the transactions contemplated hereinand therein, and the issuance of the Warrants, will not (i) contravene the Company’s charter orbylaws, (ii) violate any law, rule, regulation, order, writ, judgment, injunction, decree,determination or award, (iii) conflict with or result in the breach of, or constitute a default orrequire any payment to be made under, any contract, loan agreement, indenture, mortgage, deed oftrust, lease or other instrument binding on or affecting the Company or any of its subsidiaries orany of their respective properties or (iv) result in or require the creation or imposition of anyliens upon or with respect to any of the properties of the Company or any of its subsidiaries.          17.5 The Warrant Shares have been duly and validly authorized and reserved for issuanceand, when issued and delivered in accordance with the provisions of this Warrant Agreement and theWarrants, will be duly and validly issued and will conform to the existing Shares.          17.6 Other than as disclosed in the Form 10-K (including the exhibits thereto) for theyear ended December 31, 2008 (i) the Company has no outstanding restricted stocks, restricted stockunits, options, warrants, convertible securities or other Equity Interests and (ii) there are nostockholder agreements, registration rights agreements, stock transfer restriction agreements(other than restrictions arising in connection with the Securities Act), voting trusts or similaragreements to which the Company or, to the knowledge of the Company, any other person is a partywith respect to the Company’s securities.          17.7 The representations and warranties of the Company in the Credit Facility are trueand correct and may be relied upon by each Holder as of the date the Warrants are issued, in eachcase substituting entry into this Warrant Agreement and the transactions contemplated herebyfor entry into the Credit Facility and the transactions contemplated thereby.          17.8 No consent, approval, authorization, finding of suitability, registration, exemptionor permit or (other than informational filings or notices) any filing with or notice to anygovernmental authority or regulatory body, or any third party that is a party to any of thedocuments, to which the Company or any of its subsidiaries is a party, is required in connectionwith, or as a condition to, the execution, delivery or performance by the parties of this WarrantAgreement and the consummation of the transactions contemplated hereby.          17.9 The offer, sale, and issuance of the Warrants hereunder is exempt from registrationand prospectus delivery requirements of the Securities Act, and the rules and regulationsthereunder.          17.10 The Company will from time to time take all action which may be necessary so thatthe Warrant Shares, immediately upon their issuance upon the exercise of the Warrant, will belisted on the principal securities exchanges and markets within the United States of America onwhich other Shares are then listed.
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     SECTION 18. Registration Rights.          18.1 Piggy-Back Registration Rights.          (a) If the Company proposes to file on its own behalf and/or on behalf of any holder ofits securities a registration statement under the Securities Act on any form (other than aregistration statement on Form S-4 or S-8 or any successor form for securities to be offered in atransaction of the type referred to in Rule 145 under the Securities Act or to employees of theCompany pursuant to any employee benefit plan, respectively), including Form S-1, for theregistration of any securities (a “Piggy-Back Registration”), it will give written noticeto all Holders at least twenty (20) Business Days before the initial filing with the SEC of suchregistration statement (a “Piggy-Back Registration Statement”), which notice shall setforth the intended method of disposition of the securities proposed to be registered by theCompany. The notice shall offer to include in such filing the aggregate number of RegistrableSecurities into which the Warrants are convertible as such Holders may request.          (b) Each Holder desiring to have Registrable Securities registered under this Section18.1 (“Participating Piggy-Back Holders”) shall advise the Company in writing withinten (10) Business Days after the date of receipt of such notice from the Company, setting forth theamount of such Registrable Securities for which registration is requested. The Company shallthereupon include in such filing the number or amount of Registrable Securities for whichregistration is so requested, subject to Section 18.1(c) below, and shall use its bestefforts to effect registration of such Registrable Securities under the Securities Act.          (c) If the Piggy-Back Registration relates to an underwritten public offering and themanaging underwriter of such proposed public offering advises in writing that, in its opinion, theamount of Registrable Securities requested to be included in the Piggy-Back Registration Statementin addition to the securities being registered by the Company would be greater than the totalnumber of securities which can be sold therein without having a material adverse effect on thedistribution of such securities or otherwise having a material adverse effect on the marketabilitythereof (the “Maximum Number of Securities”), then:            (i) in the event the Company initiated the Piggy-Back Registration, the Companyshall include in such Piggy-Back Registration, in the priority listed below, up to theMaximum Number of Securities: (1) first, the securities the Company proposes toregister for the account of the Company,  (2) second, the securities of the Company of anyholder of KV Registration Rights requested to be included in suchregistration in accordance with Section 2.2 of the KV Agreement,  (3) third, all Registrable Securities requested tobe included in such registration by Participating Piggy-Back Holders(allocated, if necessary for the offering not to exceed the MaximumNumber of Securities, *pro rata*among such Holders based on the numberof Registrable Securities of the Company held by each selling Holderwhich are sought to be included in the Piggy-Back Registration, allmeasured at the time of filing of the Piggy-Back RegistrationStatement), and
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 (4) fourth, the securities of the Company of anyother selling security holders (other than holders of KV RegistrationRights and Participating Piggy-Back Holders) requested to be includedin such registration by such holders (allocated, if necessary for theoffering not to exceed the Maximum Number of Securities, *pro rata*amongsuch holders based on the number of securities of the Company held byeach such selling holder which are sought to be included in thePiggy-Back Registration, all measured at the time of filing of thePiggy-Back Registration Statement).          (ii) in the event any holder of KV Registration Rights initiated the Piggy-BackRegistration, the Company shall include in such Piggy-Back Registration, in the prioritylisted below, up to the Maximum Number of Securities: (1) first, the securities the Company that suchinitiating security holder proposes to register plus securities of theCompany of any “Requesting Holders” pursuant to Section 2.1.4of the KV Agreement,  (2) second, all Registrable Securities requested tobe included in such registration by Participating Piggy-Back Holders,(allocated, if necessary for the offering not to exceed the MaximumNumber of Securities, *pro rata*among the Holders based on the number ofRegistrable Securities of the Company held by each selling Holder whichare sought to be included in the Piggy-Back Registration, all measuredat the time of filing of the Piggy-Back Registration Statement),  (3) third, the securities of the Company of anyother selling security holders (other than holders of KV RegistrationRights and Participating Piggy-Back Holders) requested to be includedin such registration by such holders (allocated, if necessary for theoffering not to exceed the Maximum Number of Securities, *pro rata*amongsuch holders based onthe number of securities of the Company held by each such sellingholder which are sought to be included in the Piggy-BackRegistration, all measured at the time of filing of the Piggy-BackRegistration Statement), and  (4) fourth, any securities the Company proposes toregister for the account of the Company.          provided, however, that the Company shall be required to include in such Piggy-BackRegistration the securities of holders identified in paragraphs (2) through (4) above only in suchamount and in the priority listed above that would not have an “Adverse Effect” as definedin Section 2.1.5 of the KV Agreement.          (iii) in the event that any holder of securities of the Company (other thanholders of KV Registration Rights) initiated the Piggy-Back Registration, including theHolders, the Company shall include in such Piggy-Back Registration, in the priority listedbelow, up to the Maximum Number of Securities: (1) first, all Registrable Securities requested tobe included in such registration by the holders that initiated thePiggy-Back Registration and 
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   the securities requested to be included insuch registration by holders of KV Registration Rights (allocated, ifnecessary for the offering not to exceed the Maximum Number ofSecurities, *pro rata*among all such holders based on the number ofsecurities of the Company held by each such holder, all measured at thetime of filing of the Piggy-Back Registration Statement),  (2) second, all Registrable Securities requested tobe included in such registration by Participating Piggy-Back Holders,(allocated, if necessary for the offering not to exceed the MaximumNumber of Securities, *pro rata*among such Holders based on the numberof Registrable Securities of the Company held by each selling Holderwhich are sought to be included in the Piggy-Back Registration, allmeasured at the time of filing of the Piggy-Back RegistrationStatement), and  (3) third, any other securities the Companyrequested to be included in such registration (including the securitiesto be sold for the account of the Company).          (d) The Company will not hereafter enter into any agreement, which is inconsistent withthe rights of priority provided in clause (c) above.          18.2 Demand Registration Rights.          (a) Any Holder may request that the Company effect a registration (a “DemandRegistration”) under the Securities Act covering all or part of the Registrable Securities,which request shall specify the intended method or methods of disposition of such RegistrableSecurities. The Company shall promptly notify any other Holders in writing of the receipt of suchrequest and each such Holder may elect (by written notice sent to the Company within ten (10)Business Days from the date ofsuch Holder’s receipt of the aforementioned notice from the Company) to have all or part ofsuch Holder’s Registrable Securities included in such registration thereof pursuant to thisSection 18.2, and such Holder shall specify in such notice the number of RegistrableSecurities that such Holder elects to include in such registration. Thereupon the Company shall,as expeditiously as is possible, but in any event no later than forty-five (45) days (excluding anydays which occur during a permitted Blackout Period under Section 18.3) after receipt of awritten request for a Demand Registration, file with the SEC and use its best efforts to cause tobe declared effective, a registration statement (a “Demand Registration Statement”)relating to the Registrable Securities which the Company has been so requested to register by suchHolders (“Participating Demand Holders”) for sale, to the extent required to permit thedisposition (in accordance with the intended method or methods thereof, as aforesaid) of theRegistrable Securities so registered. With respect to any Demand Registration, the ParticipatingDemand Holders may request the Company to effect a registration of the Registrable Securities undera registration statement pursuant to Rule 415 under the Securities Act (or any successor rule) (a“Shelf Registration Statement”).          (b) If the majority-in-interest of the Participating Demand Holders in a DemandRegistration relating to a public offering so request that the offering be underwritten with amanaging underwriter and such managing underwriter of such Demand Registration advises the Companyin writing that, in its opinion, the number of Registrable Securities to be included in suchoffering by Participating Demand Holders (plus, in the event that at the time a request for DemandRegistration is made by a Holder pursuant to this Agreement there are outstanding KV RegistrationRights and one or more holders
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of KV Registration Rights notify the Company of its or theirelection to participate in the Demand Registration in accordance with terms of the KV Agreement,the number of securities requested to be included by such holder(s) of KV Registration Rights) isgreater than the total number of securities which can be sold therein without having a materialadverse effect on the distribution of such securities or otherwise having a material adverse effecton the marketability thereof (the “Maximum Number of Demand Securities”), then (i) if noholder of KV Registration Rights has notified the Company of its election to participate in suchDemand Registration, the Company shall include in such Demand Registration such number ofRegistrable Securities that the Participating Demand Holders have requested to be registeredthereunder allocated among all such Participating Demand Holders on a *pro rata*basis (based on thenumber of Registrable Securities held by each Participating Demand Holder) so that the aggregatenumber of such Registrable Securities included in such Demand Registration does not exceed theMaximum Number of Demand Securities, and (ii) in the event that at the time a request for DemandRegistration is made by a Holder pursuant to this Agreement there are outstanding KV RegistrationRights and one or more holders of KV Registration Rights notify the Company of its or theirelection to participate in the Demand Registration in accordance with terms of the KV Agreement,such Demand Registration shall be deemed to be a Piggy-Back Registration and the provisions ofSection 18.1(c)(iii) shall be applicable in determining registration priority rights as between theHolders and the holders of KV Registration Rights so that the aggregate number of such RegistrableSecurities and securities of such holders of KV Registration Rights included in such DemandRegistration does not exceed the Maximum Number of Demand Securities. If the amount of suchRegistrable Securities does not exceed the Maximum Number of Demand Securities, the Company mayinclude in such Demand Registration any other securities of the Company, as the Company may in itsdiscretion determine or be obligated to allow, in an amount which together with the RegistrableSecurities included in such Demand Registration shall not exceed the Maximum Number of DemandSecurities.          (c) Registrations under this Section 18.2 shall be on such appropriateregistration form of the SEC (i) as shall be selected by the Company and as shall be reasonablyacceptable to the majority-in-interest of the Participating Demand Holders and (ii) as shall permitthe disposition of the Registrable Securities in accordance with the intended method or methods ofdisposition specified in the applicable Holders’ requests for such registration. Notwithstandingthe foregoing, if, pursuant to a Demand Registration, (x) the Company proposes to effectregistration by filing a Registration Statementon Form S-3 (or any successor or similar short-form registration statement), (y) suchregistration is in connection with an underwritten offering and (z) the managing underwriter orunderwriters shall advise the Company in writing that, in its or their opinion, the use of anotherform of registration statement (or the inclusion, rather than the incorporation by reference, ofinformation in the prospectus related to a Registration Statement on Form S-3 (or other short-formregistration statement)) is of material importance to the success of such proposed offering, thensuch registration shall be effected on such other form (or such information shall be so included insuch prospectus).          (d) Holders shall be entitled to an aggregate of six (6) requests pursuant to Section18.2(a) (each, a “Demand for Registration”); providedhowever that (i)each Holder shall be entitled to at least one (1) and no more than two (2) of such requests and(ii) the Holders shall make no more than two (2) Demands for Registration within any 12 monthperiod; providedfurther that a registration requested pursuant to Section18.2(a) shall not be deemed to have been made for purposes of this Section 18.2(d)unless (i) it has been declared effective by the SEC, (ii) it has remained effective, and (iii) theoffering of Registrable Securities pursuant to such registration is not subject to any stop order,injunction or other order or requirement of the SEC or other governmental agency or court (otherthan any such stop order, injunction, or other requirement of the SEC or other governmental agencyor court prompted by act or omission of Holders of Registrable Securities).
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          (e) If any Holder of Registrable Securities disapproves of the terms of any underwrittenoffering, such Holder may elect to withdraw all its Registrable Securities by written notice to theCompany, the managing underwriter and the other Holders participating in such registration. TheRegistrable Securities so withdrawn shall also be withdrawn from registration.          18.3 Blackout Periods. The Company shall have the right to delay the filing oreffectiveness of a Demand Registration Statement required pursuant to Section 18.2 duringno more than two periods aggregating to not more than ninety (90) days (a “BlackoutPeriod”) in the event that (a) the Company would, in accordance with the reasonable writtenadvice of its counsel, be required to disclose in the prospectus information not otherwise thenrequired by law to be publicly disclosed and (b) in the judgment of the board of directors of theCompany, there is a reasonable likelihood that such disclosure, or any other action to be taken inconnection with the prospectus, would materially and adversely affect or interfere with anyfinancing, acquisition, merger, disposition of assets (not in the ordinary course of business),corporate reorganization or other similar transaction involving the Company; provided,however, that the Company shall delay during such Blackout Period the filing oreffectiveness of any Demand Registration Statement required pursuant to the registration rights ofthe holders of any securities of the Company. The Company shall promptly give the Holders writtennotice of such determination containing a general statement of the reasons for such postponementand an approximation of the duration of the anticipated delay.          18.4 Registration Procedures. If the Company is required by the provisions ofSection 18 to effect the registration of the Registrable Securities under the SecuritiesAct, the Company will, as expeditiously as possible:          (a) prepare and file with the SEC the applicable Registration Statement with respect tothe Registrable Securities and use its best efforts to cause such Registration Statement promptlyto become and remain effective for a period of time required for the disposition of the RegistrableSecurities by the Holders thereof (except with respect to a Shelf Registration Statement whichshall remain effective for a period not to exceed three (3) years); provided,however, that before filing such Registration Statement or any amendments thereto, theCompany shall furnish to the Holders copies of all documents and amendments proposed to be filed,which documents will be subject to the review of counsel to the Holders or any underwriter, and theCompany will make corrections reasonably requestedby such Holder with respect to such information prior to filing any such RegistrationStatement or amendment The Company shall not be deemed to have used its best efforts to keep suchRegistration Statement effective during the applicable period if it voluntarily takes any actionthat would result in the Holders of the Registrable Securities not being able to sell suchRegistrable Securities during that period;          (b) prepare and file with the SEC such amendments and supplements to such RegistrationStatement and the prospectus or preliminary prospectus used in connection therewith as may benecessary to keep such Registration Statement effective and to comply with the provisions of theSecurities Act with respect to the sale or other disposition of all securities covered by suchRegistration Statement until the earlier of such time as all of such securities have been disposedof in a public offering or, with respect to the Shelf Registration Statement, the expiration of thethree year period referred to in subsection (a) above;          (c) furnish to such selling Holders and the underwriters such number of conformed copiesof the applicable Registration Statement and each such amendment and supplement thereto (includingin each case all exhibits and documents incorporated by reference), and of a prospectus, includinga preliminary prospectus, in conformity with the requirements of the Securities Act, and such otherdocuments, as such selling Holders or the underwriters may reasonably request;
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          (d) use its commercially reasonable efforts to register or qualify the RegistrableSecurities covered by such Registration Statement under such other securities or blue sky laws ofsuch jurisdictions as each Holder of such securities or the managing underwriter shall reasonablyrequest, to keep such registration or qualification in effect for so long as such RegistrationStatement remains in effect, and to take any other action which may be reasonably necessary toenable such selling Holder to consummate the disposition in such jurisdictions of the securitiesowned by such Holder (provided, however, that the Company shall not be required inconnection therewith or as a condition thereto to qualify to do business, subject itself totaxation in or to file a general consent to service of process in any jurisdiction wherein it wouldnot but for the requirements of this clause (d) be obligated to do so; and provided,further, that the Company shall not be required to qualify such Registrable Securities inany jurisdiction in which the securities regulatory authority requires that any Holder submit anyof its Registrable Securities to the terms, provisions and restrictions of any escrow, lockup orsimilar agreement(s) for consent to sell Registrable Securities in such jurisdiction unless suchHolder agrees to do so), and do such other reasonable acts and things as may be required of it toenable such Holder to consummate the disposition in such jurisdiction of the securities covered bysuch Registration Statement;          (e) furnish, at the request of any Holder requesting registration of RegistrableSecurities pursuant to Section 18.1 or Section 18.2 , if the method of distributionis by means of an underwriting, on the date that the Registrable Securities are delivered to theunderwriters for sale pursuant to such registration, or if such Registrable Securities are notbeing sold through underwriters, on the date that the Registration Statement with respect to suchRegistrable Securities becomes effective, (1) a signed opinion, dated such date, of the independentlegal counsel representing the Company for the purpose of such registration, addressed to theunderwriters, if any, and if such Registrable Securities are not being sold through underwriters,then to the Holders making such request, as to such matters as such underwriters or the Holdersholding a majority of the Registrable Securities included in such registration, as the case may be,may reasonably request; and (2) letters dated such date and the date the offering is priced fromthe independent registered public accountants of the Company, addressed to the underwriters, ifany, and if such Registrable Securities are not being sold through underwriters, then to theHolders making such request (i) stating that they are independent registered public accountantswithin the meaning of the Securities Act and that, in the opinion of such accountants, thefinancial statements and other financial data of the Company included in the Registration Statementor the prospectus, or any preliminary prospectus, or any amendment or supplement thereto, comply asto form in all materialrespects with the applicable accounting requirements of the Securities Act and (ii) coveringsuch other financial matters (including information as to the period ending not more than three (3)Business Days prior to the date of such letters) with respect to the registration in respect ofwhich such letter is being given as such underwriters or the Holders holding a majority of theRegistrable Securities included in such registration, as the case may be, may reasonably requestand as would be customary in such a transaction;          (f) enter into customary agreements (including if the method of distribution is by meansof an underwriting, an underwriting agreement in customary form) and take such other actions as arereasonably required in order to expedite or facilitate the disposition of such RegistrableSecurities;          (g) otherwise use its commercially reasonable efforts to comply with all applicable rulesand regulations of the SEC, and make earnings statements satisfying the provisions of Section 11(a)of the Securities Act generally available to the Holders no later than forty-five (45) days afterthe end of any twelve (12)month period (or, if such period is a fiscal year, ninety (90) days (orsuch shorter time as may be specified in General Instruction A(2) to Form 10-K under the ExchangeAct, or its successor form, as the period within which the Company is required to file its annualreports on such form)) (i) commencing at the end of any fiscal quarter in which RegistrableSecurities are sold to underwriters in an underwritten public offering, or (ii) if not sold tounderwriters in such an offering, beginning with the first
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month of the Company’s first fiscalquarter commencing after the effective date of the Registration Statement, which statements shallcover said twelve (12) month periods;          (h) use its commercially reasonable efforts to cause all such Registrable Securities to belisted on each securities exchange or quotation system on which similar securities issued by theCompany are listed or traded;          (i) give written notice to the Holders:     (i) when such Registration Statement or any amendment thereto has beenfiled with the SEC and when such Registration Statement or any post-effectiveamendment thereto has become effective;     (ii) of any request by the SEC for amendments or supplements to suchRegistration Statement or the prospectus or the preliminary prospectus includedtherein or for additional information;     (iii) of the issuance by the SEC of any stop order suspending theeffectiveness of such Registration Statement or the initiation of any proceedingsfor that purpose;     (iv) of the receipt by the Company or its legal counsel of anynotification with respect to the suspension of the qualification of the Shares forsale in any jurisdiction or the initiation or threatening of any proceeding for suchpurpose; and     (v) of the happening of any event that requires the Company to make changesin such Registration Statement or the prospectus or the preliminary prospectus inorder to make the statements therein not misleading (which notice shall beaccompanied by an instruction to suspend the use of the prospectus until therequisite changes have been made);          (j) use its commercially reasonable efforts to prevent the issuance or obtain thewithdrawal of any order suspending the effectiveness of any Registration Statement at the earliestpossible time;          (k) furnish to each Holder, without charge, at least one copy of such RegistrationStatement and any post-effective amendment thereto, including financial statements and schedules,and, if the Holder so requests in writing, all exhibits (including those, if any, incorporated byreference);          (l) upon the occurrence of any event contemplated by Section 18.4 (i)(v) above,promptly prepare a post-effective amendment to such Registration Statement or a supplement to therelated prospectus or preliminary prospectus or file any other required document so that, asthereafter delivered to the Holders, the prospectus or the preliminary prospectus will not containan untrue statement of a material fact or omit to state any material fact necessary to make thestatements therein, in light of the circumstances under which they were made, not misleading. Ifthe Company notifies the Holders in accordance with Section 18.4 (i)(v) above to suspendthe use of the prospectus until the requisite changes to the prospectus have been made, then theHolders shall suspend use of such prospectus and the period of effectiveness of such RegistrationStatement provided for above shall be extended by the number of days from and including the date ofthe giving of such notice to the date Holders shall have received such amended or supplementedprospectus pursuant to this Section 18.4(l);
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          (m) make reasonably available for inspection by the representatives of the Holders, anyunderwriter participating in any disposition pursuant to such Registration Statement and anycounsel, accountant or other agent retained by such representative or any such underwriter allrelevant financial and other records, pertinent corporate documents and properties of the Companyand cause the Company’s employees to supply all relevant information reasonably requested by suchrepresentative or any such underwriter, counsel, accountant or agent in connection with theregistration;          (n) in connection with any underwritten offering, make the senior executives of theCompany available to the selling Holders and the underwriters for meetings with prospectivepurchasers of the Registrable Securities and prepare and present to potential investors customary“road show” material in each case in accordance with the recommendations of the underwriters and inall respects in a manner consistent with other new issuances of securities in an offering of asimilar size to such offering of the Registrable Securities;          (o) permit any selling Holder to participate in the preparation of any RegistrationStatement, the prospectus or any preliminary prospectus, or any amendments thereto, and, ifrequested by any Holder or the managing underwriter, promptly incorporate in the RegistrationStatement, the prospectus, prospectus supplement or any amendment thereto such information as suchHolders or the managing underwriter reasonably requests to be included therein; and          (p) use commercially reasonable efforts to procure the cooperation of the Transfer Agentin settling any offering or sale of Registrable Securities into book-entry form in accordance withany procedures reasonably requested by the Holders or the underwriters.          18.5 Expenses of Registration. All expenses incurred in connection with eachregistration pursuant to this Section 18, excluding underwriters’ discounts andcommissions, but including without limitation all registration, filing and qualification fees, wordprocessing, duplicating, printers’ and accounting fees (including the expenses of any specialaudits or “comfort” letters required by or incident to such performance and compliance), fees ofFINRA or listing fees, messenger and delivery expenses, all fees and expenses of complying withstate securities or blue sky laws, fees and disbursements of counsel for the Company, fees andexpenses of the Company and the underwriters relating to “road show” investor presentations,including the cost of any aircraft chartered for such purpose, and the fees and disbursements ofone counsel for the selling Holders (which counsel shall be selected by the Holders holding amajority-in-interest of the Registrable Securities being registered), shall be paid by the Company,except that the Holders shall bear and pay the underwriting commissions.          18.6 Rule 144 and Rule 144A Information.          (a) With a view to making available the benefits of certain rules and regulations of theSEC which may at any time permit the sale of the Registrable Securities to the public withoutregistration, the Company agrees to:          (b) make and keep public information available, as those terms are understood and definedin Rule 144 under the Securities Act;          (c) use its best efforts to file with the SEC in a timely manner all reports and otherdocuments required of the Company under the Securities Act and the Exchange Act; and          (d) furnish to each Holder of Registrable Securities forthwith upon request a writtenstatement by the Company as to its compliance with the reporting requirements of Rule 144 and ofthe
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Securities Act and the Exchange Act, a copy of the most recent annual or quarterly report ofthe Company, and such other reports and documents so filed by the Company as such Holder mayreasonably request in availing itself of any rule or regulation of the SEC allowing such Holder tosell any Registrable Securities without registration.          (e) At all times during which the Company is neither subject to the reporting requirementsof Section 13 or 15(d) of the Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b)under the Exchange Act, it will provide, upon the written request of any holder of RegistrableSecurities in written form (as promptly as practicable and in any event within fifteen (15)Business Days), to any prospective buyer of such Common Stock designated by such holder, allinformation required by Rule 144A(d)(4)(i) of the General Regulations promulgated by the SEC underthe Securities Act.     SECTION 19. Indemnification and Contribution.          (a) The Company shall indemnify and hold harmless each Holder, its directors, officers,employees, advisors, agents, partners, members, managers and Affiliates and each Person whoparticipates in the offering of such Registrable Securities, including underwriters (as defined inthe Securities Act), and each Person, if any, who controls such Holder or participating Personwithin the meaning of the Securities Act, against any losses, claims, damages or liabilities, jointor several, insofar as such losses, claims, damages or liabilities (or proceedings in respectthereof) arise out of or are based on any untrue or alleged untrue statement of any material factcontained in any Registration Statement, preliminary prospectus, or prospectus or any amendmentthereof or supplement thereto, or any documents incorporated by reference therein or arise out ofor are based upon the omission or alleged omission to state therein a material fact required to bestated therein or necessary to make the statements therein not misleading, or any violation oralleged violation by the Company of the Securities Act, the Exchange Act or any other federalsecurities laws or applicable “blue sky” or state securities laws, and shall reimburse each Holder,its directors, officers, employees, advisors, agents, partners, members, managers and Affiliates,and such participating Person or controlling Person for any legal or other expenses reasonablyincurred by them in connection with investigating or defending any such loss, claim, damage,liability or action; provided, however, that the Company shall not be liable to anyHolder, its directors, officers, employees, advisors, agents, partners, members, managers andAffiliates, participating Person or controlling Person in any such case for any such loss, claim,damage, liability or action to the extent that it arises out of or is based upon an untruestatement or alleged untrue statement or omission or alleged omission made in connection with suchRegistration Statement, preliminary prospectus, prospectus or amendments or supplements thereto, inreliance upon and in conformity with written information furnished expressly for use in connectionwith such Registration Statement by any such Holder, its directors, officers, employees, advisors,agents, partners, members, managers and Affiliates, participating Person or controlling Person.Such indemnity shall remain in full force and effect regardless of any investigation made by or onbehalf of any such Holder, its directors, officers, employees, advisors, agents, partners, members,managers and Affiliates, participating Person or controlling Person, and shall survive the transferof the Registrable Securities by such Holder. The reimbursements required by this Section19(a) shall be made by periodic payments during the course of the investigation or defense, asand when bills are received or expenses incurred.          (b) In connection with any Registration Statement in which a Holder of RegistrableSecurities is participating, each such Holder shall indemnify and hold harmless the Company, itsdirectors and officers, and each Person, if any, who controls the Company within the meaning of theSecurities Act, against any losses, claims, damages or liabilities, joint or several, to which theCompany or any such director, officer or controlling person may become subject, under theSecurities Act, insofar as such losses, claims, damages or liabilities (or proceedings in respectthereof) arise out of or are based upon any untrue statement or alleged untrue statement of anymaterial fact contained in any Registration Statement,
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preliminary prospectus, or prospectus or anyamendment thereof or supplement thereto or arise out of or are based upon the omission or allegedomission to state therein a material fact required to be stated therein or necessary to make thestatements therein not misleading, in each case to the extent, but only to the extent, that suchuntrue statement or alleged untrue statement or omission or alleged omission was made in suchRegistration Statement, preliminary prospectus, the prospectus oramendments or supplements thereto, in reliance upon and in conformity with written informationfurnished by or on behalf of such Holder expressly for use in connection with such RegistrationStatement; and each such Holder shall reimburse any legal or other expenses reasonably incurred bythe Company or any such director, officer, controlling Person, in connection with investigating ordefending any such loss, claim, damage, liability or action; provided, however,that the indemnity agreement contained in this Section 19(b) shall not apply to amountspaid in settlement of any such loss, claim, damage, liability or action if such settlement iseffected without the prior written consent of such Holder, and provided, further,that the obligation to indemnify will be several, not joint and several, among such Holders ofRegistrable Securities and the liability of each Holder hereunder shall be limited to theproportion of any such loss, claim, damage, liability or expense which is equal to the proportionthat the net proceeds from the sale of the Registrable Securities sold by such Holder under suchRegistration Statement bears to the total net proceeds from the sale of all securities soldthereunder, but not in any event to exceed the net proceeds received by such Holder from the saleof Registrable Securities covered by such Registration Statement.          (c) If the indemnification provided for in this Section 19 from the indemnifyingparty is unavailable to an indemnified party hereunder in respect of any losses, claims, damages,liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifyingsuch indemnified party, shall contribute to the amount paid or payable by such indemnified party asa result of such losses, claims, damages, liabilities or expenses in such proportion as isappropriate to reflect the relative fault of the indemnifying party and indemnified parties inconnection with the actions which resulted in such losses, claims, damages, liabilities orexpenses, as well as any other relevant equitable considerations. The relative fault of suchindemnifying party and indemnified parties shall be determined by reference to, among other things,whether any action in question, including any untrue or alleged untrue statement of a material factor omission or alleged omission to state a material fact, has been made by, or relates toinformation supplied by, such indemnifying party or indemnified parties, and the parties’ relativeintent, knowledge, access to information and opportunity to correct or prevent such action. Theamount paid or payable by a party as a result of the losses, claims, damages, liabilities andexpenses referred to above shall be deemed to include any legal or other fees or expensesreasonably incurred by such party in connection with any investigation or proceeding.Notwithstanding the provisions of this Section 19(c), no Holder shall be required tocontribute an amount greater than the dollar amount by which the net proceeds received by suchHolder with respect to the sale of any Registrable Securities exceeds the amount of damages whichsuch Holder has otherwise been required to pay by reason of any and all untrue or alleged untruestatements of material fact or omissions or alleged omissions of material fact made in anyRegistration Statement, prospectus or preliminary prospectus or any amendment thereof or supplementthereto related to such sale of Registrable Securities.          The parties hereto agree that it would not be just and equitable if contribution pursuant tothis Section 19(c) were determined by *pro rata*allocation or by any other method ofallocation which does not take account of the equitable considerations referred to in theimmediately preceding clause. No Person guilty of fraudulent misrepresentation (within the meaningof Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who wasnot guilty of such fraudulent misrepresentation.          (d) Any Person entitled to indemnification under this Section 19 agrees to giveprompt written notice to the indemnifying party after the receipt by the indemnified party of anywritten notice of the commencement of any action, suit, proceeding or investigation or threatthereof made in
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writing for which the indemnified party intends to claim indemnification orcontribution pursuant to this Warrant Agreement; provided, that the failure so to notifythe indemnified party shall not relieve the indemnifying party of any liability that it may have tothe indemnifying party hereunder. If notice of commencement of any such action is given to theindemnifying party as above provided, the indemnifying party shall be entitled to participate inand, to the extent it may wish, to assume the defenseof such action at its own expense, with counsel chosen by it and reasonably satisfactory tosuch indemnified party. The indemnified party shall have the right to employ separate counsel inany such action and participate in the defense thereof, but the fees and expenses of such counselshall be paid by the indemnified party unless (i) the indemnifying party agrees to pay the same,(ii) the indemnifying party fails to assume the defense of such action, or (iii) the named partiesto any such action (including any impleaded parties) have been advised by such counsel that either(A) representation of such indemnified party and the indemnifying party by the same counsel wouldbe inappropriate under applicable standards of professional conduct or (B) there are one or morelegal defenses available to it which are substantially different from or additional to thoseavailable to the indemnifying party. No indemnifying party shall be liable for any settlemententered into without its written consent, which consent shall not be unreasonably withheld.          (e) The agreements contained in this Section 19 shall survive the transfer of theRegistrable Securities by any Holder and sale of all the Registrable Securities pursuant to anyRegistration Statement and shall remain in full force and effect, regardless of any investigationmade by or on behalf of any Holder, its directors and officers and Affiliates or participating orcontrolling Person.     SECTION 20. Notices to the Company and the Holders. Any notice or demandauthorized or permitted by this Warrant Agreement to be given or made by any Holder to or on theCompany shall be sufficiently given or made if given in writing, by certified or registered mail,return receipt requested, postage prepaid, or by U.S. express mail service, or by private overnightmail service (e.g. Federal Express), or by facsimile transmission. Any such notice, request,demand, other communication or delivery shall be deemed to have been received (a) on the businessday actually received if given by facsimile transmission, (b) on the business day immediatelysubsequent to mailing, if sent by U.S. express mail service or private overnight mail service, or(c) three (3) business days following the mailing thereof, if mailed by certified or registeredmail, postage prepaid, return receipt requested, and all such notices shall be sent to thefollowing addresses (or to such other address or addresses as a party may have advised the other inthe manner provided herein) and shall be given as follows:If to Company:Grubb & Ellis Company