AFFILIATE OF
FBR; AND THE COMPANY IS NOT AN "AFFILIATE" (AS DEFINED IN NASD CONDUCT
RULE 2720) OF ANY MEMBER OF THE FINANCIAL INDUSTRY REGULATORY AUTHORITY
("FINRA").
(NN)
ACKNOWLEDGEMENT REGARDING PURCHASE OF THE PURCHASED NOTES.
THE
COMPANY ACKNOWLEDGES AND AGREES THAT FBR IS ACTING SOLELY IN THE CAPACITY OF AN
ARM'S LENGTH PURCHASER WITH RESPECT TO THE PURCHASE OF THE NOTES AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THAT TO THE KNOWLEDGE OF THE COMPANY (I) NO
OFFICER OR DIRECTOR OF FBR IS AN OFFICER OR DIRECTOR OF THE COMPANY, (II) FBR IS
NOT AN "AFFILIATE" OF THE COMPANY (AS DEFINED IN RULE 144 PROMULGATED UNDER THE
SECURITIES ACT) OR (III) FBR IS NOT A "BENEFICIAL OWNER" OF MORE THAN 10% OF THE
COMMON STOCK (AS DEFINED FOR PURPOSES OF RULE 13D-3 OF THE SECURITIES ACT).
THE
COMPANY FURTHER REPRESENTS TO FBR THAT THE COMPANY'S DECISION TO ENTER INTO THE
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREUNDER HAS BEEN BASED SOLELY ON
AN INDEPENDENT EVALUATION BY THE COMPANY AND ITS REPRESENTATIVES.
(OO)
OFFICER'S CERTIFICATES.
ANY CERTIFICATE SIGNED BY ANY OFFICER OF
THE COMPANY AND DELIVERED TO FBR IN CONNECTION WITH THE OFFERING OF THE NOTES
SHALL BE DEEMED A REPRESENTATION AND WARRANTY BY THE COMPANY TO FBR, AS TO THE
MATTERS COVERED THEREBY.
5.
CERTAIN COVENANTS OF THE COMPANY.
THE COMPANY HEREBY AGREES WITH FBR:
12
(A)
ON OR BEFORE THE FIRST BUSINESS DAY FOLLOWING THE DATE OF THIS
AGREEMENT, THE COMPANY SHALL ISSUE A PUBLICLY AVAILABLE PRESS RELEASE AND/OR
FILE WITH THE SEC A CURRENT REPORT ON FORM 8-K DISCLOSING ALL MATERIAL TERMS OF
THE TRANSACTION CONTEMPLATED HEREUNDER (TO THE EXTENT NOT PREVIOUSLY PUBLICLY
DISCLOSED);
(B)
THAT PROMPTLY FROM TIME TO TIME DURING THE TERM OF THIS AGREEMENT,
THE COMPANY WILL TAKE SUCH ACTION TO QUALIFY THE NOTES FOR OFFERING AND SALE
UNDER THE SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTIONS AS FBR MAY
REASONABLY REQUEST, AND TO MAINTAIN SUCH QUALIFICATIONS IN EFFECT FOR AS LONG AS
MAY BE NECESSARY TO COMPLETE THE SALE OR RESALE OF THE NOTES; PROVIDED, THAT IN
CONNECTION THEREWITH THE COMPANY SHALL NOT BE REQUIRED TO (A) QUALIFY AS A
FOREIGN CORPORATION IN ANY JURISDICTION IN WHICH IT WOULD NOT OTHERWISE BE
REQUIRED TO SO QUALIFY, (B) FILE A GENERAL CONSENT TO SERVICE OF PROCESS IN ANY
SUCH JURISDICTION OR (C) SUBJECT ITSELF TO TAXATION IN ANY JURISDICTION IN WHICH
IT WOULD NOT OTHERWISE BE SUBJECT;
(C)
THAT THE COMPANY WILL REASONABLY COOPERATE ON A TIMELY BASIS WITH
ANY REASONABLE DUE DILIGENCE REQUEST FROM, OR REVIEW CONDUCTED BY, FBR OR ITS
COUNSEL PRIOR TO THE CLOSING TIME IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, AND UPON REASONABLE NOTICE,
PROVIDING INFORMATION AND MAKING AVAILABLE DOCUMENTS AND APPROPRIATE CORPORATE
OFFICERS, DURING REGULAR BUSINESS HOURS AND AT THE COMPANY'S PRINCIPAL OFFICES
AND/OR BY TELEPHONE, AS FBR OR ITS COUNSEL MAY REASONABLY REQUEST;
(D)
TO FURNISH TO FBR (UPON REQUEST) FOR A PERIOD OF TWO YEARS FROM
THE CLOSING TIME, (I) COPIES OF ALL ANNUAL,