Common use of Holding Period Clause in Contracts

Holding Period. For the purposes of Rule 144 of the Securities Act, the Company acknowledges that the holding period of the New Preferred Shares and New Warrants, respectively, may be tacked onto the holding period of the Existing Preferred Shares and Existing Warrants, respectively, and the Company agrees not to take a position contrary to this Section 7. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance with the terms of the New Certificate of Designations, the shares of Common Stock issuable upon conversion of the New Preferred Shares are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (ii) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant to Rule 144 of the Securities Act, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock in accordance herewith or pursuant to the New Certificate of Designations or the New Warrants.

Holding Period. For the purposes of Rule 144 clarifying the foregoing provisions (i) the circumstances under which Additional Interest is owed are not cumulative, (ii) in no event will the rate of Additional Interest exceed 0.25% per annum, and (iii) Additional Interest shall not accrue at any time when there are no Registrable Securities Outstanding.](2) If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. The Securities are redeemable, at the option of the Partnership, at any time in whole or from time to time in part, upon not less than 30 and not more than 60 days' notice mailed to each Holder of the Securities Actto be redeemed at the Holder's address appearing in the Security Register, on any date prior to Maturity at a price equal to (a) 100% of the principal amount thereof plus accrued interest to the Redemption Date (subject to the right of holders of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date) and (b) a Make-Whole Premium, if any (the "Redemption Price"). In no event will the Redemption Price ever be less than 100% of the principal amount of the Notes plus accrued interest to the Redemption Date. The Make-Whole Premium will be calculated by an independent investment banking institution of national standing appointed by the Partnership; provided, that if the Partnership fails to make such appointment at least 30 Business Days prior to the Redemption Date, or if the institution so appointed is unwilling or unable to make such calculation, such calculation will be made by Banc of America Securities LLC or, if such firm is unwilling or unable to make such calculation, by an independent investment banking institution of national standing appointed by the Trustee (in any such case, an "Independent Investment Banker"). The Partnership has no obligation to redeem or purchase any Securities pursuant to any sinking fund or analogous requirement, or (except as provided in the Indenture) upon the happening of a specified event, or at the option of a Holder thereof. The Indenture contains provision for defeasance at any time of (1) the entire indebtedness of this Security or (2) certain covenants contained therein, in each case upon compliance with certain conditions set forth in the Indenture. ---------- (2) Omitted from Exchange Securities. The Indenture permits, with certain exceptions as therein provided, the Company acknowledges that amendment thereof and the holding period modification of the New Preferred Shares rights and New Warrants, respectively, may be tacked onto the holding period obligations of the Existing Preferred Shares Partnership and Existing Warrantsthe rights of Holders of the Securities under the Indenture at any time by the Partnership and the Trustee with the consent of a majority in aggregate principal amount of the Securities at the time Outstanding. The Indenture also contains provisions permitting Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, respectivelyon behalf of Holders of all the Securities, to waive compliance by the Partnership with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities, Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Company agrees Trustee shall not have received from Holders of a majority in principal amount of the Outstanding Securities a direction inconsistent with such request and shall have failed to take institute such proceedings within 60 days; provided, however, that such limitations do not apply to a position contrary suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Security on or after the respective due dates expressed herein. No reference herein to the Indenture and no provision of this Section 7Security or of the Indenture shall, without the consent of the Holder hereof, alter or impair the obligation of the Partnership, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Partnership in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Partnership and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Securities of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Company acknowledges Securities are issuable only in registered form without coupons in denominations of $1,000 and agrees that (assuming any integral multiple thereof, unless otherwise required by law. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder is not an affiliate surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Partnership may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Partnership, the Trustee and any agent of the CompanyPartnership or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Partnership, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. ASSIGNMENT FORM FOR VALUE RECEIVED, the undersigned sells, assigns and transfers this Security to -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- (Print or type transferee's name, address, zip code and social security or taxpayer identification number above) (iand irrevocably appoints __________________________ agent to transfer this Security on the books of the Partnership. The agent may substitute another to act for the agent. Date: -------------------- Your signature: ---------------------------------- NOTICE: The signature(s) upon issuance on this assignment must correspond in every particular with the name(s) of the registered owner(s) appearing on the face of the Security. ---------------------------------- Signature Signature Guaranteed by: --------------------------------------- NOTICE: Signature must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Trustee, which requirements will include membership or participation in STAMP or such other signature guaranty program as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the terms Securities Exchange Act of the New Certificate 1934, as amended. 32 In connection with any transfer of Designationsthis Security, the shares of Common Stock issuable upon conversion of the New Preferred Shares are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (ii) upon issuance undersigned confirms that such Security is being transferred in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (ii) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant to Rule 144 of the Securities Act, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock in accordance herewith or pursuant to the New Certificate of Designations or the New Warrants.its terms: CHECK ONE BOX BELOW

Holding Period. For the purposes of Rule 144 of the Securities Act144, the Company acknowledges that the holding period of the New Preferred Shares Primary Securities (and upon exercise of the New WarrantsWarrant (assuming a cashless exercise thereof, respectively, may the New Warrant Shares) is expected to be tacked onto the holding period of the Existing Preferred Shares and Existing Warrants, respectively, and Securities the Company agrees not to take a position contrary to this Section 711. The Company acknowledges and agrees that (assuming the Holder is not an affiliate “affiliate” of the CompanyCompany as that term is defined in the 1933 Act) (i) the New Primary Securities (and upon issuance in accordance with the terms exercise of the New Certificate of DesignationsWarrant (assuming a cashless exercise thereof, the shares of Common Stock issuable upon conversion of the New Preferred Shares are, as of the date hereof, Warrant Shares) are eligible to be resold pursuant to Rule 144 of the Securities Act144, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable New Primary Securities (and upon conversion of the New Preferred Shares or exercise of the New Warrants Warrant (assuming a cashless exercise thereof, the New Warrant Shares) becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (iiiii) in connection with any resale of the shares of Common Stock issuable New Primary Securities (and upon conversion of the New Preferred Shares or exercise of the New Warrants Warrant (assuming a cashless exercise thereof, the New Warrant Shares) pursuant to Rule 144 of the Securities Act144, the Holder shall solely be required to provide reasonable assurances that such shares applicable New Primary Securities (and upon exercise of Common Stock the New Warrant (assuming a cashless exercise thereof, the New Warrant Shares) are eligible for resale, assignment or transfer under Rule 144 of the Securities Act144, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares any New Primary Securities (and upon exercise of Common Stock in accordance herewith or pursuant to the New Certificate of Designations or Warrant (assuming a cashless exercise thereof, the New WarrantsWarrant Shares).

Holding Period. For the purposes of Rule 144 of the Securities Act144, the Company acknowledges that the holding period of (x) the New Preferred Shares and New Warrants, respectively, may be tacked onto the holding period of the Existing Preferred Holder Warrant, (y) the New Warrant may be tacked onto the holding period of the Holder Warrant and (z) the New Warrant Shares and Existing Warrants(assuming a cashless exercise of the New Warrant) may be tacked onto the holding period of the Holder Warrant, respectivelyand, and in each case, the Company agrees not to take a position contrary to this Section 79. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance with the terms New Warrant Shares (assuming a cashless exercise of the New Certificate of DesignationsWarrant), the shares of Common Stock issuable upon conversion of New Warrant and the New Preferred Shares are, are as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act144, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Warrant Shares or (assuming a cashless exercise of the New Warrants Warrant), the New Warrant or the New Shares, as applicable, becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (iiiii) in connection with any resale of the shares of Common Stock issuable upon conversion of the any New Preferred Warrant Shares or (assuming a cashless exercise of the New Warrants Warrant), the New Warrant and/or any New Shares pursuant to Rule 144 of the Securities Act144, the Holder shall solely be required to provide reasonable assurances that such shares of applicable New Common Stock Securities are eligible for resale, assignment or transfer under Rule 144 of the Securities Act144, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of any New Common Stock Securities in accordance herewith or pursuant to in accordance with the terms of the New Certificate of Designations or the New WarrantsWarrant.

Holding Period. For (a) In addition to any restrictions on transfer contained in the purposes CWI 2 OP LPA and without prior written consent of Rule 144 CWI 2, until the earlier of (a) the completion of CWI 2’s initial underwritten public offering of Common Stock, (b) ninety (90) days after the listing of Common Stock on a national securities exchange (either (a) or (b) an “IPO Event”), (c) the consummation of a Change in Control of CWI 2, (d) solely in the case of securities held by the WPC Entities, such time following either (1) the resignation of all representatives of the Securities ActWPC Entities from CWI 2's Board of Directors following a Change in Control of CWI 2 or WPC, or (2) as the Company acknowledges that WPC Entities do not have the holding period right to designate any persons for election of directors at the New Preferred Shares and New Warrants, respectively, may be tacked onto the holding period annual meeting of the Existing Preferred Shares and Existing Warrants, respectively, and the Company agrees not to take a position contrary to this Section 7. The Company acknowledges and agrees that (assuming the Holder is not an affiliate stockholders of the Company) (i) upon issuance CWI 2 in accordance with this Agreement, or (e) except as contemplated by Section 1.5(a), solely in the terms case of securities held by the Watermark Entities, such time as Medzigian no longer serves as Chief Executive Officer or a director of CWI 2, the WPC Entities or the Watermark Entities, as applicable, shall not offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option or warrant for the sale of, make any short sale or otherwise transfer or dispose or encumber (collectively, “Transfer”) the Common Stock, Preferred Stock or limited partnership interests in CWI 2 OP that it receives pursuant to Section 1.4 of this Agreement; provided, however, that, subject to compliance with applicable Laws, including applicable securities Laws, the WPC Entities and the Watermark Entities may engage in a Permitted Transfer; provided, further, that the foregoing restrictions on pledges and encumbrances shall not apply where the beneficiary of the New Certificate pledge or encumbrance has agreed in writing to be bound by the restrictions set forth in this Section 1.6. In addition, in the event of Designationsan underwritten public offering of securities of CWI 2 and to the extent requested by the underwriters of such public offering, the shares of Common Stock issuable upon conversion of the New Preferred Shares are, as of the date hereof, eligible WPC entities and Watermark Entities shall enter into customary lockup agreements to be resold pursuant to Rule 144 of the Securities Act, (ii) upon issuance negotiated in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants becoming ineligible to be resold good faith by the Holder pursuant to Rule 144 of the Securities Act and (ii) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant to Rule 144 of the Securities Act, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock in accordance herewith or pursuant to the New Certificate of Designations or the New Warrantsapplicable parties.

Holding Period. For the purposes of Rule 144 of the Securities Act144, the Company acknowledges that the holding period of the New Preferred Shares Exchange Primary Securities (and New Warrantsupon a cashless exercise of the Exchange Warrant, respectively, the Exchange Warrant Shares) may be tacked onto the holding period of the Existing Preferred Shares and Existing Warrants, respectivelyNote, and the Company agrees not to take a position contrary to this Section 79. The Assuming the accuracy of the representations and warranties of the Holder contained herein, the Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) that, (i) upon issuance in accordance with the terms of the New Certificate of Designationshereof, the shares of Exchange Common Stock issuable upon conversion of the New Preferred Shares are, as of the date hereof, will be eligible to be resold pursuant to Rule 144 of the Securities Act144, (ii) upon issuance in accordance with the terms of the New Warrants Exchange Warrant (assuming a cashless exercise thereofof the Exchange Warrant), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, Exchange Warrant Shares will be eligible to be resold pursuant to Rule 144 of the Securities Act144, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Exchange Shares or (assuming a cashless exercise of the New Warrants Exchange Warrant, with respect to any Exchange Warrant Shares) becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (iiiv) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Exchange Shares or (assuming a cashless exercise of the New Warrants Exchange Warrant, with respect to any Exchange Warrant Shares) pursuant to Rule 144 of the Securities Act144, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock Exchange Shares are eligible for resale, assignment or transfer under Rule 144 of the Securities Act144, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock Exchange Shares in accordance herewith or pursuant to and/or the New Certificate of Designations or the New WarrantsExchange Warrant, as applicable.

Holding Period. For the purposes of Rule 144 of the Securities Act144, the Company acknowledges that (I) the holding period of the New Preferred Shares Notes (and upon conversion of the New WarrantsNotes, respectivelythe New Conversion Shares) may be tacked onto the holding period of the Existing Notes and (II) the holding period of the New Warrant (and upon exercise of the New Warrant (assuming a cashless exercise thereof), the New Warrant Shares), in each case, may be tacked onto the holding period of the Existing Preferred Shares and Existing Warrants, respectivelyNotes, and the Company agrees not to take a position contrary to this Section 78. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance with the terms of the New Certificate of DesignationsNotes, the shares of Common Stock issuable upon conversion of the New Preferred Conversion Shares arewill be, as of the date hereofAugust 13, 2018, eligible to be resold pursuant to Rule 144 of the Securities Act144, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Conversion Shares or exercise of the New Warrants becoming ineligible to be resold by the Holder pursuant to Rule 144 (iii) upon issuance in accordance with the terms of the Securities Act New Warrant, assuming a cashless exercise thereof, the New Warrant Shares will be, as of August 13, 2018, eligible to be resold pursuant to Rule 144, (iv) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the New Warrant Shares (if issued pursuant to a cashless exercise) becoming ineligible to be resold by the Holder pursuant to Rule 144 and (iiiv) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Underlying Shares or pursuant to Rule 144 (if New Warrant Shares, assuming such New Warrant Shares were issued pursuant to a cashless exercise of the New Warrants pursuant to Rule 144 of the Securities ActWarrant), the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock New Underlying Shares are eligible for resale, assignment or transfer under Rule 144 of the Securities Act144, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock New Underlying Shares in accordance herewith or pursuant to the New Certificate of Designations or the New Warrantsherewith.

Holding Period. For the purposes of Rule 144 clarifying the foregoing provisions (i) the circumstances under which Liquidated Damages are owed are not cumulative, (ii) in no event will the rate of Liquidated Damages exceed 0.25% per annum, and (iii) Liquidated Damages shall not accrue at any time when there are no Registrable Securities Outstanding.](3) If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. The Securities are redeemable, at the option of the Company, at any time in whole or from time to time in part, upon not less than 30 and not more than 60 days' notice mailed to each Holder of the Securities Actto be redeemed at the Holder's address appearing in the Security Register, on any date prior to Maturity at a price equal to (a) 100% of the principal amount thereof plus accrued interest to the Redemption Date (subject to the right of holders of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on or prior to the Redemption Date) and (b) a Make-Whole Premium, if any (the "Redemption Price"). In no event will the Redemption Price ever be less than 100% of the principal amount of the Securities being redeemed plus accrued interest to the Redemption Date. The Make-Whole Premium will be calculated by an independent investment banking institution of national standing appointed by the Company; provided, that if the Company fails to make such appointment at least 30 Business Days prior to the Redemption Date, or if the institution so appointed is unwilling or unable to make such calculation, such calculation will be made by Salomon Smith Barney Inc. or, if such firm is unwilling or unable to mxxx xxxx xxxxulation, by an independent investment banking institution of national standing appointed by the Trustee (in any such case, an "Independent Investment Banker"). The Company has no obligation to redeem or purchase any Securities pursuant to any sinking fund or analogous requirement, or (except as provided in the Indenture) upon the happening of a specified event, or at the option of a Holder thereof. The Indenture contains provision for defeasance at any time of (1) the entire indebtedness of this Security or (2) certain covenants contained therein, in each case upon compliance with certain conditions set forth in the Indenture. The Indenture permits, with certain exceptions as therein provided, the Company acknowledges that amendment thereof and the holding period modification of the New Preferred Shares rights and New Warrants, respectively, may be tacked onto the holding period obligations of the Existing Preferred Shares Company and Existing Warrantsthe rights of Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of a majority in aggregate principal amount of the Securities at the time Outstanding. The Indenture also contains provisions permitting Holders of specified percentages in aggregate principal amount of the Securities at the time Outstanding, respectivelyon behalf of Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to the Securities, Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Company agrees Trustee shall not have received from Holders of a majority in principal amount of the Outstanding Securities a direction inconsistent with such request and shall have failed to take institute such proceedings within 60 days; provided, however, that such limitations do not apply to a position contrary to this Section 7. The Company acknowledges and agrees that (assuming suit instituted by the Holder is not an affiliate hereof for the enforcement of payment of the principal of or any interest on this Security on or after the respective due dates expressed herein. No reference herein to the Indenture and no provision of this Security or of the Indenture shall, without the consent of the Holder hereof, alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in The City of New York, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or its attorney duly authorized in writing, and thereupon one or more new Securities of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof, unless otherwise required by law. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture. ASSIGNMENT FORM FOR VALUE RECEIVED, the undersigned sells, assigns and transfers this Security to -------------------------------------------------------------------- -------------------------------------------------------------------------------- (Print or type transferee's name, address, zip code and social security or taxpayer identification number above) (iand irrevocably appoints __________________________ agent to transfer this Security on the books of the Company. The agent may substitute another to act for the agent. Date: --------------------- Your signature: NOTICE: The signature(s) upon issuance on this assignment must correspond in every particular with the name(s) of the registered owner(s) appearing on the face of the Security. Signature Signature Guaranteed by: --------------------------------------------------------- NOTICE: Signature must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Trustee, which requirements will include membership or participation in STAMP or such other signature guaranty program as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the terms Securities Exchange Act of the New Certificate of Designations, the shares of Common Stock issuable upon conversion of the New Preferred Shares are1934, as amended. SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY(4) The initial principal amount of this Global Security is $____________. The following increases or decreases in this Global Security as a result of exchanges of a part of this Global Security for an interest in another Global Security or Definitive Security, or exchanges of a part of another Global Security or a Definitive Security for an interest in this Global Security have been made: Amount of decrease in Principal Amount Amount of increase in Principal amount of this Signature of authorized Date of of this Global Principal Amount of Global Security following signatory of Trustee or Exchange Security this Global Security such decrease or increase Securities Custodian -------- ---------------------------- --------------------- ------------------------- ----------------------- ---------- (4) To be included only on Global Securities. 21 Section 204. Form of Trustee's Certificate and Authorization The Trustee's certificates of authentication shall be in substantially the date hereof, eligible to be resold pursuant to Rule 144 following form: This is one of the Securities Act, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible designated therein referred to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (ii) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant to Rule 144 of the Securities Actwithin-mentioned Indenture. WACHOVIA BANK, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resaleNATIONAL ASSOCIATION, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock in accordance herewith or pursuant to the New Certificate of Designations or the New Warrants.As Trustee By: -------------------------------- Authorized Signatory

Holding Period. For the purposes of Rule 144 clarifying the foregoing provisions, Additional Interest shall not accrue at any time that there are no Registrable Securities outstanding.]* If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture contains provision for defeasance at any time of (1) the entire indebtedness of this Security or (2) certain Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities Act, under the Indenture at any time by the Company acknowledges that the holding period of the New Preferred Shares and New Warrants, respectively, may be tacked onto the holding period of the Existing Preferred Shares and Existing Warrants, respectively, and the Company agrees not to take a position contrary to this Section 7. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance Trustee with the terms consent of the New Certificate of Designations, the shares of Common Stock issuable upon conversion of the New Preferred Shares are, as of the date hereof, eligible to be resold pursuant to Rule 144 a majority in aggregate principal amount of the Securities Act, (ii) upon issuance at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 aggregate principal amount of the Securities Actat the time Outstanding, (iii) on behalf of the Holders of all the Securities, to waive compliance by the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion with certain provisions of the New Preferred Shares Indenture and certain past defaults under the Indenture and their consequences. Any such consent or exercise of the New Warrants becoming ineligible to be resold waiver by the Holder pursuant to Rule 144 of this Security shall be conclusive and binding upon such Holder and upon all future Holders of -------- * Omitted from Exchange Securities. this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. As set forth in, and subject to, the provisions of the Securities Act and (ii) in connection with Indenture, no Holder of any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant Security will have any right to Rule 144 of the Securities Act, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for institute any transfer agent fees or DTC fees or legal fees of the Company’s counsel proceeding with respect to the removal Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of legendsa continuing Event of Default, if anythe Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of the Outstanding Securities a direction inconsistent with such request and shall have failed to institute such proceedings within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Security on or after the respective due dates expressed herein. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in New York City, duly endorsed by, or issuance accompanied by a written instrument of shares of Common Stock transfer in accordance herewith or pursuant form satisfactory to the New Certificate Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of Designations this Series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this Series are exchangeable for a like aggregate principal amount of Securities of this Series of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the New WarrantsTrustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

Holding Period. For the purposes of Rule 144 clarifying the foregoing provisions, Additional Interest shall not accrue at any time that there are no Registrable Securities outstanding. If an Event of Default shall occur and be continuing, the principal of all the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture contains provision for defeasance at any time of (1) the entire indebtedness of this Security or (2) certain Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities Act, under the Indenture at any time by the Company acknowledges that the holding period of the New Preferred Shares and New Warrants, respectively, may be tacked onto the holding period of the Existing Preferred Shares and Existing Warrants, respectively, and the Company agrees not to take a position contrary to this Section 7. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance Trustee with the terms consent of the New Certificate of Designations, the shares of Common Stock issuable upon conversion of the New Preferred Shares are, as of the date hereof, eligible to be resold pursuant to Rule 144 a majority in aggregate principal amount of the Securities Act, (ii) upon issuance at the time Outstanding. The Indenture also contains provisions permitting the Holders of specified percentages in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 aggregate principal amount of the Securities Actat the time Outstanding, (iii) on behalf of the Holders of all the Securities, to waive compliance by the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion with certain provisions of the New Preferred Shares Indenture and certain past defaults under the Indenture and their consequences. Any such consent or exercise of the New Warrants becoming ineligible to be resold waiver by the Holder pursuant to Rule 144 of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. As set forth in, and subject to, the provisions of the Securities Act and (ii) in connection with Indenture, no Holder of any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant Security will have any right to Rule 144 of the Securities Act, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for institute any transfer agent fees or DTC fees or legal fees of the Company’s counsel proceeding with respect to the removal Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of legendsa continuing Event of Default, if anythe Holders of not less than 25% in principal amount of the Outstanding Securities shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of the Outstanding Securities a direction inconsistent with such request and shall have failed to institute such proceedings within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or any interest on this Security on or after the respective due dates expressed herein. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in New York City, duly endorsed by, or issuance accompanied by a written instrument of shares of Common Stock transfer in accordance herewith or pursuant form satisfactory to the New Certificate Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of Designations like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Securities are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities are exchangeable for a like aggregate principal amount of Securities of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the New WarrantsTrustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

Holding Period. For Notwithstanding anything herein to the purposes contrary, AFC shall not be obligated to cause to be issued or delivered any certificate evidencing Shares acquired pursuant to the exercise of Rule 144 the Option, unless and until AFC is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations and governmental authority and the requirements of any exchange or stock market upon which the Common Stock is traded or listed. AFC shall in no event be obligated to register any securities pursuant to the Securities Act of 1933 (as now in effect or as hereafter amended) (the "Securities Act") or to take any other affirmative action in order to cause the issuance and delivery of such certificates to comply with any such law, regulation or requirement. In order to ensure compliance with applicable federal, state and local law, the Committee may at the time of exercise of the Option condition the exercise of such Option upon receipt from the Optionee, or the person exercising the Option if other than the Optionee, of a representation of the investment intention of the Person to whom the Shares are to be delivered. Under current law, unless the Shares issuable upon exercise of Options under the Plan are registered with the Securities and Exchange Commission ("SEC") under the Securities Act, such Shares are restricted securities subject to the Company acknowledges that restrictions on resale as provided in Rule 144 as promulgated by the holding period SEC under the Securities Act. THEREFORE, UNLESS (I) THE ISSUANCE OF SHARES PURSUANT TO THE EXERCISE OF OPTIONS UNDER THE PLAN IS REGISTERED UNDER THE SECURITIES ACT OR (II) THE SUBSEQUENT SALE OF SHARES ACQUIRED UPON EXERCISE OF THE OPTION IS REGISTERED UNDER THE SECURITIES ACT, OR (III) AN EXEMPTION FROM REGISTRATION IS AVAILABLE, SUCH SHARES MUST BE HELD FOR TWO YEARS AFTER EXERCISE BEFORE THEY MAY BE SOLD. An appropriate legend reflecting this restriction shall be placed on the certificate evidencing the Shares when issued unless the requirements of (i) above have previously been met. Shares for which a restrictive legend is required may not be held in book-entry form or registered in "street" name. Also under applicable law, the grant of the New Preferred Option and sale of the underlying Shares may be deemed to be a purchase and New Warrantssale, respectively, under Section 16 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") and, therefore, may be tacked onto result in the holding incursion of short swing profit recovery under the Exchange Act and the regulations promulgated thereunder. To avoid liability under Section 16 of the Exchange Act, a period of six months must elapse between the Existing Preferred Shares and Existing Warrants, respectively, Date of Grant and the Company agrees not to take a position contrary to this Section 7. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance with the terms of the New Certificate of Designations, the shares sale of Common Stock issuable received upon conversion of the New Preferred Shares are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (ii) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant to Rule 144 of the Securities Act, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock in accordance herewith or pursuant to the New Certificate of Designations or the New WarrantsOption.

Holding Period. For the purposes of Rule 144 of the Securities Act144, the Company acknowledges that the holding period of the New Preferred Shares Primary Securities (and upon conversion or cashless exercise, as applicable, of the Right, the New WarrantsNote or the New Warrant, respectively, may the New Underlying Shares) shall be tacked onto the holding period of the Existing Preferred Shares and Existing Warrants, respectivelyNote, and the Company agrees not to take a position contrary to this Section 79. The Company acknowledges and agrees that that, effective as of the date hereof and as of the Closing Date (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance with the terms of the New Certificate of DesignationsRight, the shares of Common Stock issuable upon conversion New Note or the New Warrant (assuming a cashless exercise of the New Preferred Warrant, with respect to any New Warrant Shares), the New Underlying Shares are, as of the date hereof, will be eligible to be resold pursuant to Rule 144 and, unless the Holder is an affiliate of the Securities ActCompany, the Company will provide any required opinion of the Company’s counsel that such New Underlying Shares will be free from any legends, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Underlying Shares or (assuming a cashless exercise of the New Warrants Warrant, with respect to any New Warrant Shares) becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (iiiii) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Underlying Shares or (assuming a cashless exercise of the New Warrants Warrant, with respect to any New Warrant Shares) pursuant to Rule 144 144, the Company will provide any required opinion of the Securities Act, Company’s counsel that such New Underlying Shares are Freely Tradable (as defined in the New Note) and no legal opinion of counsel for the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counselrequired. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of shares of Common Stock New Underlying Shares in accordance herewith or pursuant to the New Certificate of Designations or the New Warrantsherewith.

Holding Period. For Notwithstanding anything herein to the purposes contrary, AFC shall not be obligated to cause to be issued or delivered any certificate evidencing Shares acquired pursuant to the exercise of Rule 144 the Option, unless and until AFC is advised by its counsel that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations and governmental authority and the requirements of any exchange or stock market upon which the Common Stock is traded or listed. AFC shall in no event be obligated to register any securities pursuant to the Securities Act of 1933 (as now in effect or as hereafter amended) (the "Securities Act") or to take any other affirmative action in order to cause the issuance and delivery of such certificates to comply with any such law, regulation or requirement. In order to ensure compliance with applicable federal, state and local law, the Committee may at the time of exercise of the Option condition the exercise of such Option upon receipt from the Optionee, or the person exercising the Option if other than the Optionee, of a representation of the investment intention of the Person to whom the Shares are to be delivered. Under current law, unless the Shares issuable upon exercise of Options under the Plan are registered with the Securities and Exchange Commission ("SEC") under the Securities Act, such Shares are restricted securities subject to the Company acknowledges that restrictions on resale as provided in Rule 144 as promulgated by the holding period SEC under the Securities Act. THEREFORE, UNLESS (I) THE ISSUANCE OF SHARES PURSUANT TO THE EXERCISE OF OPTIONS UNDER THE PLAN IS REGISTERED UNDER THE SECURITIES ACT OR (II) THE SUBSEQUENT SALE OF SHARES ACQUIRED UPON EXERCISE OF THE OPTION IS REGISTERED UNDER THE SECURITIES ACT, OR (III) AN EXEMPTION FROM REGISTRATION IS AVAILABLE, SUCH SHARES MUST BE HELD FOR TWO YEARS AFTER EXERCISE BEFORE THEY MAY BE SOLD. An appropriate legend reflecting this restriction shall be placed on the certificate evidencing the Shares when issued unless the requirements of (i) above have previously been met. Shares for which a restrictive legend is required may not be held in book-entry form or registered in "street" name. Also under applicable law, the grant of the New Preferred Option and sale of the underlying Shares may be deemed to be a purchase and New Warrantssale, respectively, under Section 16 of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") and, therefore, may be tacked onto result in the holding incursion of short swing profit recovery under the Exchange Act and the regulations promulgated thereunder. To avoid liability under Section 16 of the Exchange Act, a period of six months must elapse between the Existing Preferred Shares and Existing Warrants, respectively, Date of Grant and the Company agrees not to take a position contrary to this Section 7. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company) (i) upon issuance in accordance with the terms of the New Certificate of Designations, the shares sale of Common Stock issuable received upon conversion the exercise of the New Preferred Option. In addition, Shares areacquired through the exercise of the Option, as which is intended to be an Incentive Stock Option, may not be disposed of, by sale or otherwise, by the Optionee without the prior written consent of the Committee, until the later of the second anniversary of the Date of Grant or the first anniversary of the date hereof, eligible to be resold pursuant to Rule 144 of on which the Securities Act, (ii) upon issuance in accordance with the terms of the New Warrants (assuming a cashless exercise thereof), the shares of Common Stock issuable upon exercise of the New Warrants are, as of the date hereof, eligible to be resold pursuant to Rule 144 of the Securities Act, (iii) the Company Option is not aware of any event reasonably likely to occur that would reasonably be expected to result in the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants becoming ineligible to be resold by the Holder pursuant to Rule 144 of the Securities Act and (ii) in connection with any resale of the shares of Common Stock issuable upon conversion of the New Preferred Shares or exercise of the New Warrants pursuant to Rule 144 of the Securities Act, the Holder shall solely be required to provide reasonable assurances that such shares of Common Stock are eligible for resale, assignment or transfer under Rule 144 of the Securities Act, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent fees or DTC fees or legal fees of the Company’s counsel exercised with respect to such Shares. The Optionee acknowledges that in order to obtain the removal tax treatment provided for Incentive Stock Options under Sections 421 and 422 of legends, if any, or issuance of shares of Common Stock the Code the holding periods set forth in accordance herewith or pursuant the preceding sentence must be complied with. An appropriate legend reflecting this restriction shall be placed on the certificate evidencing the Shares when issued unless the requirement relating to the New Certificate consent of Designations or the New WarrantsCommittee has previously been met.