(VI)
PERFORMANCE OF THE COMPANY'S OTHER OBLIGATIONS HEREUNDER;
(I)
TO USE REASONABLE EFFORTS IN COOPERATION WITH FBR TO OBTAIN
PERMISSION FOR THE NOTES TO BE ELIGIBLE FOR CLEARANCE AND SETTLEMENT THROUGH THE
FACILITIES OF THE DEPOSITORY TRUST COMPANY;
(J)
TO REFRAIN DURING THE PERIOD COMMENCING ON THE DATE OF THIS
AGREEMENT AND ENDING ON THE DATE THAT IS 60 DAYS AFTER THE DATE OF THIS
AGREEMENT, WITHOUT THE PRIOR WRITTEN CONSENT OF FBR (WHICH CONSENT MAY BE
WITHHELD OR DELAYED IN FBR'S SOLE DISCRETION), FROM (I) OFFERING, PLEDGING,
SELLING, CONTRACTING TO SELL, SELLING ANY OPTION OR CONTRACT TO PURCHASE,
PURCHASING ANY OPTION OR CONTRACT TO SELL, GRANTING ANY OPTION, RIGHT OR WARRANT
FOR THE SALE OF, LENDING OR OTHERWISE DISPOSING OF OR TRANSFERRING, DIRECTLY OR
INDIRECTLY, ANY EQUITY SECURITIES OF THE COMPANY OR ANY SECURITIES CONVERTIBLE
INTO OR EXERCISABLE OR EXCHANGEABLE FOR EQUITY SECURITIES OF THE COMPANY, OR
FILING ANY REGISTRATION STATEMENT UNDER THE SECURITIES ACT WITH RESPECT TO ANY
OF THE FOREGOING, OR (II) ENTERING INTO ANY SWAP OR OTHER ARRANGEMENT THAT
TRANSFERS, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, ANY OF THE ECONOMIC
CONSEQUENCES OF OWNERSHIP OF EQUITY SECURITIES OF THE COMPANY, WHETHER ANY SUCH
TRANSACTION DESCRIBED IN CLAUSE (I) OR (II) ABOVE IS TO BE SETTLED BY DELIVERY
OF COMMON STOCK OR SUCH OTHER SECURITIES, IN CASH OR OTHERWISE.
THE FOREGOING
SENTENCE SHALL NOT APPLY TO (I) THE NOTES TO BE SOLD HEREUNDER, (II) ANY SHARES
OF COMMON STOCK ISSUED BY THE COMPANY UPON THE EXERCISE OF AN OPTION OUTSTANDING
ON THE DATE HEREOF AND REFERRED TO IN THE COMPANY SEC FILINGS, OR (III) SUCH
ISSUANCES OF OPTIONS OR GRANTS OF RESTRICTED STOCK UNDER THE COMPANY'S STOCK
OPTION AND INCENTIVE PLANS AS DESCRIBED IN THE COMPANY SEC FILINGS;
(K)
IF THE PURCHASED NOTES ARE NOT DELIVERED BY THE COMPANY TO FBR FOR
ANY REASON OTHER THAN THE TERMINATION OF THIS AGREEMENT PURSUANT TO CLAUSES
(II) THROUGH (V) OF THE FIRST PARAGRAPH OF SECTION 7 HEREOF OR THE DEFAULT BY
FBR IN ITS OBLIGATIONS HEREUNDER, TO REIMBURSE FBR FOR ALL OF ITS OUT-OF-POCKET
EXPENSES RELATING TO THE TRANSACTIONS
14
CONTEMPLATED HEREBY, INCLUDING THE REASONABLE FEES AND DISBURSEMENTS OF ITS
LEGAL COUNSEL; AND
(L)
THAT THE COMPANY WILL NOT TAKE, AND WILL CAUSE ITS SUBSIDIARIES
NOT TO TAKE, AND USE REASONABLE EFFORTS TO CAUSE ITS AFFILIATES NOT TO TAKE,
DIRECTLY OR INDIRECTLY, ANY ACTION DESIGNED TO OR THAT HAS CONSTITUTED OR THAT
REASONABLY WOULD BE EXPECTED TO CAUSE OR RESULT IN THE STABILIZATION OR
MANIPULATION OF THE PRICE OF ANY SECURITY OF THE COMPANY IN CONNECTION WITH THE
OFFERING OF THE NOTES.
6.
CONDITIONS OF FBR'S OBLIGATIONS.
THE OBLIGATIONS OF FBR
HEREUNDER ARE SUBJECT TO (I) THE ACCURACY OF THE REPRESENTATIONS AND WARRANTIES
OF THE COMPANY ON THE DATE HEREOF AND AT THE CLOSING TIME, (II) THE ACCURACY OF
THE STATEMENTS OF THE COMPANY'S OFFICERS MADE IN ANY CERTIFICATE PURSUANT TO THE
PROVISIONS HEREOF AS OF THE DATE OF SUCH CERTIFICATE, (III) THE PERFORMANCE BY
THE COMPANY