AND THE OTHER TRANSACTION DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY, TO THE EXTENT FEASIBLE BY LOCAL
LAW, INCLUDING ALL SUCH ACTIONS TO ESTABLISH, CREATE, PRESERVE, PROTECT AND
PERFECT A FIRST PRIORITY LIEN IN FAVOR OF THE COLLATERAL AGENT FOR THE BENEFIT
OF SUCH BUYER IN THE COLLATERAL (AS EACH TERM IS DEFINED IN THE SECURITY
AGREEMENT).
T.
LETTER AGREEMENT.
THE PARTIES
ACKNOWLEDGE THAT THE TERMS OF THE LETTER AGREEMENT, DATED AS OF OCTOBER 31,
2007, RELATING TO THE SECURITIES PURCHASE AGREEMENT, DATED AS OF OCTOBER 31,
2007, AS AMENDED, SHALL BE APPLICABLE TO THIS AGREEMENT AS WELL AS IF THIS
AGREEMENT WAS REFERRED TO THEREIN.
IN ADDITION, THE COMPANY ACKNOWLEDGES AND
AGREES TO USE ITS BEST EFFORTS TO FINALIZE THE PLEDGING OF SHARES OF THE CAPITAL
STOCK OR OWNERSHIP INTERESTS OF AVERION EUROPE GMBH AND AVERION INTERNATIONAL
(SWITZERLAND) LTD. WITHIN SIXTY (60) DAYS FOLLOWING THE CLOSING DATE.
U.
BOARD OBSERVER RIGHTS.
FROM THE FIRST
DATE FOLLOWING THE CLOSING DATE ON WHICH NO PRIOR NOTES ARE OUTSTANDING, UNTIL
THE FIRST DATE FOLLOWING THE CLOSING DATE ON WHICH NO NOTES ARE OUTSTANDING,
CUMULUS INVESTORS, LLC SHALL HAVE THE RIGHT TO APPOINT ONE (1) PERSON TO ATTEND
AND OBSERVE MEETINGS AND CORRESPONDENCE OF THE COMPANY'S BOARD OF DIRECTORS
26
(INCLUDING ANY AND ALL EXECUTIVE SESSIONS); PROVIDED, HOWEVER, THAT SUCH PERSON
SHALL NOT HAVE THE RIGHT TO VOTE ON ANY MATTERS AT HAND; PROVIDED, FURTHER,
HOWEVER, THAT SUCH RIGHTS SHALL NOT BE TRANSFERABLE TO ANY THIRD PARTY OR
ASSIGNEE.
IN CONNECTION WITH SUCH OBSERVER ROLE, SUCH APPOINTEE SHALL BE
PROVIDED WITH COPIES OF ALL INFORMATION AND DOCUMENTATION PROVIDED TO MEMBERS OF
THE COMPANY'S BOARD OF DIRECTORS AT, OR IN CONNECTION WITH SUCH MEETINGS,
PROVIDED THAT THE COMPANY SHALL HAVE THE RIGHT TO EXCLUDE SUCH OBSERVER FROM ANY
MEETING IF THE COMPANY REASONABLY BELIEVES SUCH EXCLUSION IS REQUIRED BY THE
BOARD OF DIRECTORS' FIDUCIARY DUTIES OR NOT TO DISCLOSE ANY INFORMATION IT DEEMS
TO BE CONFIDENTIAL OR THAT MAY JEOPARDIZE THE ATTORNEY/CLIENT PRIVILEGE.
V.
SUBSIDIARY GOOD STANDING.
THE COMPANY
ACKNOWLEDGES AND AGREES THAT THE SUBSIDIARY SHALL BE VALIDLY EXISTING IN GOOD
STANDING UNDER THE LAWS OF THE STATE OF MARYLAND WITHIN FORTY FIVE (45) DAYS
FOLLOWING THE CLOSING DATE.
W.
QUARTERLY COMPLIANCE CERTIFICATE.
FROM
THE DATE OF THIS AGREEMENT UNTIL THE FIRST DATE FOLLOWING THE CLOSING DATE ON
WHICH NO NOTES ARE OUTSTANDING, THE COMPANY SHALL PROVIDE THE BUYERS, NO LATER
THAN 30 DAYS FOLLOWING THE END OF EACH FISCAL QUARTER, A CERTIFICATE EXECUTED BY
THE CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER OF THE COMPANY
CERTIFYING THAT THE COMPANY AND ITS SUBSIDIARIES AND FOREIGN SUBSIDIARIES WERE,
AS OF THE END OF SUCH PRECEDING QUARTER, AND AT ALL TIMES DURING SUCH PRECEDING
QUARTER, IN FULL COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
5.
NEGATIVE COVENANTS.
A.
PROHIBITION AGAINST VARIABLE PRICED
SECURITIES.
FROM THE DATE OF THIS AGREEMENT UNTIL THE FIRST DATE FOLLOWING THE
CLOSING DATE ON WHICH NO BUYER HOLDS ANY SECURITIES, THE COMPANY SHALL NOT IN
ANY MANNER ISSUE OR SELL