SUBSIDIARIES, THAT SUCH MEZZANINE INVESTOR'S WARRANT REPRESENTED
IMMEDIATELY PRIOR TO THE MINIMUM EQUITY CONTRIBUTION.
UPON REQUEST OF ANY
MEZZANINE INVESTOR, THE COMPANY SHALL DELIVER A CERTIFICATE OF AN APPROVED
OFFICER CONFIRMING THE ADJUSTMENT TO THE WARRANT.
THE REQUIREMENT TO MAKE A
MINIMUM EQUITY CONTRIBUTION SHALL BE REDUCED, ON A DOLLAR-FOR-DOLLAR BASIS, BY
THE NET PROCEEDS RECEIVED BY THE COMPANY IN A QUALIFIED PUBLIC OFFERING."
3.
CONDITIONS.
THE EFFECTIVENESS OF THIS AMENDMENT IS SUBJECT TO
THE FOLLOWING CONDITIONS:
A.
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED THIS AMENDMENT.
B.
THE COMPANY SHALL HAVE DELIVERED THE INDEMNIFICATION AGREEMENT
DATED AS OF JULY
, 2007, MADE BY AND BETWEEN BH/RE, L.L.C AND THE MEZZANINE
INVESTORS.
3
C.
THE COMPANY SHALL HAVE DELIVERED, OR SHALL HAVE CAUSED TO BE
DELIVERED
SUCH OTHER DOCUMENTS, AGREEMENTS AND INSTRUMENTS AS MAY BE REASONABLY
REQUESTED BY MEZZANINE INVESTORS, EACH SUCH DOCUMENT, AGREEMENT AND INSTRUMENT
IN FORM AND CONTENT REASONABLY ACCEPTABLE TO MEZZANINE INVESTORS.
D.
THE MEZZANINE INVESTORS SHALL HAVE EXECUTED THIS AMENDMENT.
E.
ALL PROCEEDINGS TAKEN IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AMENDMENT AND ALL DOCUMENTS, INSTRUMENTS AND OTHER LEGAL
MATTERS INCIDENT THERETO SHALL BE SATISFACTORY TO THE MEZZANINE INVESTORS AND
THEIR LEGAL COUNSEL;
F.
THE COMPANY SHALL HAVE PAID ALL COSTS AND EXPENSES INCURRED BY
THE MEZZANINE INVESTORS IN CONNECTION WITH THE PREPARATION, NEGOTIATION,
EXECUTION AND DELIVERY OF THIS AMENDMENT AND ANY DOCUMENTS EXECUTED OR DELIVERED
IN CONNECTION HEREWITH.
4.
NO MODIFICATION.
EXCEPT AS AMENDED HEREBY, THE INVESTORS
AGREEMENT REMAINS UNMODIFIED AND IS IN FULL FORCE AND EFFECT.
5.
WARRANTS.
THE COMPANY AND THE MEZZANINE INVESTORS AGREE THAT THE
COMPANY SHALL ISSUE TO EACH MEZZANINE INVESTOR AN AMENDED AND RESTATED WARRANT
TO PURCHASE MEMBERSHIP INTERESTS OF MEZZCO, L.L.C. (EACH, A "WARRANT
CERTIFICATE") IN THE FORM OF EXHIBIT A ATTACHED HERETO WITHIN FOURTEEN (14) DAYS
OF THE DATE HEREOF; PROVIDED, THAT IN ORDER FOR A MEZZANINE INVESTOR TO RECEIVE
ITS WARRANT CERTIFICATE, SUCH MEZZANINE INVESTOR SHALL HAVE COMPLIED WITH ITS
OBLIGATIONS UNDER SECTION 9 OF THE RESTRUCTURING AGREEMENT, INCLUDING WITHOUT
LIMITATION, DELIVERY TO THE COMPANY OF SUCH MEZZANINE INVESTOR'S NOTE(S) (AS
DEFINED IN THE RESTRUCTURING AGREEMENT) AND/OR WARRANT(S) (AS DEFINED IN THE
RESTRUCTURING AGREEMENT) (OR EVIDENCE INDICATING SUCH NOTE(S) AND/OR WARRANT(S)
HAVE BEEN LOST, STOLEN OR MISPLACED, IN THE FORM OF AN AFFIDAVIT REASONABLY
ACCEPTABLE TO THE COMPANY), AND THE COMPANY SHALL BE UNDER NO OBLIGATION TO
DELIVER SUCH WARRANT CERTIFICATE UNTIL SUCH TIME AS SUCH MEZZANINE INVESTOR
SHALL HAVE COMPLIED WITH SUCH OBLIGATIONS.
IN ADDITION, THE MEZZANINE INVESTORS
AGREE THAT EXHIBIT A HERETO SHALL REPLACE EXHIBIT 3(H) OF THE RESTRUCTURING
AGREEMENT.
6.
COUNTERPARTS.
THIS AMENDMENT MAY BE EXECUTED BY ONE OR MORE OF
THE PARTIES TO THIS AMENDMENT AND ANY NUMBER OF SEPARATE COUNTERPARTS, EACH OF
WHICH WHEN SO EXECUTED, SHALL BE DEEMED AN ORIGINAL AND ALL SAID COUNTERPARTS
WHEN TAKEN TOGETHER SHALL BE DEEMED TO CONSTITUTE BUT ONE AND THE SAME
INSTRUMENT.
ANY SIGNATURE DELIVERED BY A PARTY BY FACSIMILE OR PORTABLE
DOCUMENT FORMAT (PDF) TRANSMISSION SHALL BE DEEMED AN ORIGINAL SIGNATURE HERETO.